Citation Nr: 20004876 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 17-67 575 DATE: January 22, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). Entitlement to an initial 50 percent rating for headaches is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right foot/toe disability is remanded. Entitlement to service connection for a left foot/toe disability is remanded. FINDINGS OF FACT 1. A March 2009 rating decision denied service connection for PTSD; the Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the March 2009 rating decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. 3. For the entire appeal period, the Veteran’s headaches have been equivalent in nature and severity to frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, especially when considered without regard to the ameliorative effects of medication. CONCLUSIONS OF LAW 1. The March 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Since December 29, 2015, the criteria for an initial 50 percent disability rating for headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1976 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. The Board has recharacterized the psychiatric claim as reflected on the title page to include consideration of all psychiatric disorders reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO denied the Veteran’s claim for service connection for PTSD in a March 2009 rating decision for lack of current diagnosis and an in-service incurrence or link to service. The Veteran was informed of this decision in the same month, he did not appeal the decision, and new and material evidence was not received within the appeal period. Thus, the March 2009 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Evidence received more than one year since the March 2009 rating decision constitutes new and material evidence regarding the Veteran’s acquired psychiatric disorder. Specifically, in his December 2015 claim to reopen, the Veteran indicated his PTSD was due to an in-service motor vehicle accident where he sustained multiple injuries. See December 2015 VA Form 21-0781. Additionally, in a March 2016 VA examination report, the examiner diagnosed the Veteran with unspecified depressive disorder and panic disorder and found the claimed in-service stressor of a motor vehicle accident met the criteria for a PTSD stressor. This evidence is new as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for PTSD and the claim is reopened. Increased Ratings 2. Entitlement to an initial 50 percent rating for headaches is granted. I. General Rating Principles and Applicable Rating Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disabilities. 38 C.F.R. § 4.14. The Veteran’s headaches are rated pursuant to DC 8100. 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent disability rating is warranted for migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. II. Analysis The Veteran is currently assigned a 30 percent rating from December 29, 2015, for his service-connected headaches. The appeal period before the Board is from December 29, 2015, the date of award of service connection for his headaches. In a March 2016 VA examination report, the Veteran reported headaches described as throbbing/pounding pain over the frontal, temple, and posterior head region associated with light sensitivity and occasional nausea and vomiting lasting about six hours occurring three to five times per week. The VA examiner noted medications are necessary for the treatment of the Veteran’s headaches, namely Vicodin, Amitriptyline, and Cyclobenzaprine. The examiner noted pulsating or throbbing head pain on both sides of his head in the frontal head and temple head regions lasting less than one day. Nausea, vomiting, and sensitivity to light were listed as symptoms of his headaches. The examiner indicated he had prostrating attacks once a month and his headache disability did not impact his ability to work. In his March 2016 Notice of Disagreement (NOD), the Veteran indicated that his headaches affected his ability to work. During the October 2019 Board hearing, the Veteran testified that in the past he had taken trips to the emergency room due to his headaches; that he has a constant ringing in his ears due to his headaches; he takes pain medications to manage his headaches; he has headaches between 80 and 95 percent of the time; and that when he feels an incapacitating episode of headaches coming he has to go sit or lay down due to the pain level being at 10, which eventually goes down to about an eight after taking pain medications, and that these episodes last about an hour three times a day. He also testified that his headaches cause sensitivity to light and sound, that he has been permanently disabled since 2009, and that his headaches made it hard for him to go back to work when he was partly disabled. See October 2019 Board Hearing Transcript at 3-8. Upon consideration of the evidence of record, the Board finds that the Veteran’s headache disability has more nearly approximated the criteria for a 50 percent disability rating under DC 8100 for the entire appeal period. In so finding, the Board notes that neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined “prostrating.” However, “prostration” is defined as “extreme exhaustion or powerlessness,” (Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007)), or as “physically or emotionally exhausted,” Webster II New College Dictionary 889 (3rd ed. 2001). In the instant case, although it appears the frequency of the Veteran’s headaches has increased during the pendency of his claim, the reported nature and severity, to include associated symptoms, has been relatively consistent. The Veteran has reported having persistent headaches, occurring three to five times per week up to three times per day and lasting an hour, which the March 2016 VA examiner noted were prostrating and which he competently and credibly reports made it difficult for him to go to work. The Veteran’s headaches are also accompanied by nausea, vomiting, ringing in the ears, and sensitivity to light and sound, and frequently are incapacitating at a pain level of 10/10 where the Veteran must sit or lay down. Furthermore, it is clear that the Veteran regularly takes medications to manage his headaches, and they are not always effective in relieving his headache pain. Notably, the Court has held that “the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As DC 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran’s headaches, the Board is precluded from considering the relief afforded by the Veteran’s medication, if any, in evaluating the severity of his disability. Id. In this regard, March 2016 VA examiner classified his headaches as “prostrating,” but not “very frequent prostrating and prolonged attacks productive of severe economic inadaptability”. However, it is not clear whether they considered the ameliorative effect of his using various pain medications in making their assessment of the nature, frequency, and duration of his headaches. Overall, the Board finds that when resolving reasonable doubt in the Veteran’s favor and considering the relief provided by medication, his headaches are more aptly described by the criteria for a 50 percent rating, which is the highest schedular rating available under DC 8100. REASONS FOR REMAND 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran asserts that his psychiatric disorder is due to multiple in-service stressors, including being in a motor vehicle accident where he sustained multiple injuries; being present aboard ship when a fellow shipmate he knew became lost at sea and never recovered; and being informed his brother had been killed during service while stationed apart from the Veteran. See December 2015 VA Form 21-0781, March 2016 VA examination report, and October 2019 Board Hearing Transcript at 12. The Veteran was afforded a VA examination in March 2016. The examiner found no current diagnosis for PTSD under the applicable DSM-5 criteria but diagnosed unspecified depressive disorder and panic disorder under the DSM-5. However, the examiner’s rationale for her negative nexus opinion is not adequate, as she did not take the Veteran’s lay statements into consideration when explaining why she attributes the Veteran’s disabilities to non-service stressors over the Veteran’s conceded in-service stressor of being in a motor vehicle accident and other claimed in-service stressors, and relies on the absence of documented treatment. Thus, the examination is inadequate, and another examination with a different examiner is warranted on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, an attempt to verify the Veteran’s stressors should also be accomplished on remand. 4. Entitlement to service connection for a right knee disability is remanded. The Veteran maintains that his right knee disability is due to an injury sustained when he was involved in a motor vehicle accident during service. See October 2019 Board Hearing Transcript at 15. He was afforded a VA examination in March 2016, however the examiner failed to opine on the Veteran’s right knee disability being directly related to service. Thus, an addendum opinion is warranted on remand. 5. Entitlement to service connection for a right ankle disability is remanded. The Veteran maintains that his right ankle disability was incurred due an in-service right ankle injury that occurred when he fell while carrying a 100-pound master valve that landed on his ankle. To this end, he maintains that he was placed on light duty following the incident and has continued to experience problems with his ankle since that time. Alternatively, he asserts that his right ankle disability is secondary to his right knee disability. See October 2019 Board Hearing Transcript at 20. The March 2016 VA examination report indicates no current diagnosis of a right ankle disability. However, recently the Court recently held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that pain resulting in functional impairment could constitute a current disability, even if there is no diagnosis connecting the pain with a current underlying condition. In this regard, the Veteran has reported right ankle pain throughout the appeal period and during the March 2016 VA examination indicated that this pain limits his functional ability, including not being able to run or walk too fast. The Board finds that a new VA examination and a medical nexus opinion is warranted on remand to determine the etiology of any current right ankle pain that results in functional impairment. McLendon, 20 Vet. App. 79, 83. 6. Entitlement to service connection for a right foot/toe disability is remanded. 7. Entitlement to service connection for a left foot/toe disability is remanded. The Veteran asserts that his bilateral toe skin disability was incurred during service that was manifested by ingrown toe nails and a missing toenail and that his feet were treated during service and he has had problems with his toes since that time. To this end, the Veteran maintains that he currently has an ingrown left toenail, a missing left toenail, and pain in his left foot. Additionally, he asserts that he has bunions, athlete’s foot, and fungus on both feet. See October 2019 Board Hearing Transcript at 18, 22. The Veteran was afforded a VA examination in March 2016. The examiner diagnosed left great toe ingrown toenail and left second toe missing toenail. However, the examiner failed to render an opinion on the left second toe missing toenail. Additionally, the Veteran is competent to report foot/toe symptomatology such as athlete’s foot, fungus, and bunions which are not addressed at all during the examination. Thus, a new VA examination is warranted on remand. Any outstanding VA treatment records should also be secured. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, attempt to verify his reported psychiatric stressors. See December 2015 VA Form 21-0781 and October 2019 Board Hearing Transcript at 12. 2. Obtain any outstanding VA treatment records. 3. Then schedule the Veteran for a VA examination with an examiner other than the March 2016 examiner to determine the nature and etiology of his acquired psychiatric disorder. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. Following a full mental status examination, the examiner should address the following: (a) Please identify whether a diagnosis of PTSD is warranted under the DSM-5. (b) If a diagnosis of PTSD is warranted under the DSM-5, specify whether that diagnosis is related to the Veteran’s fear of hostile military or terrorist activity. (c) If a diagnosis of PTSD under the DSM-5 is warranted and is not due to a fear of hostile military or terrorist activity, specify the claimed in-service stressor(s) upon which that diagnosis is based. The examiner is advised that the in-service stressor of being involved in a motor vehicle accident, is conceded. If the Veteran’s PTSD is attributed to non-service stressors, please explain why. (d) Please identify whether any other acquired psychiatric disorder is present under the DSM-5, to include unspecified depressive disorder and panic disorder. (e) For any other DSM-5 diagnosis other than PTSD, diagnosed in part (d), please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in service or is otherwise related to service, to include as a result of conceded motor vehicle accident during service and any other verified stressors. The examiner is advised that although the in-service stressor of being involved in a motor vehicle accident is conceded, an opinion is necessary as to any causal relationship between the current psychiatric disability and the conceded stressor. If the Veteran’s psychiatric disorder is attributed to non-service stressors, please explain why. In so doing, the examiner should comment on the Veteran’s assertion that following his claimed in-service stressors of being present when a fellow shipmate was lost at sea, he began having psychiatric symptoms including dreams which have continued since service. See October 2019 Board Hearing Transcript at 12. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Obtain an addendum opinion from a VA examiner other than the March 2016 examiner that addresses the nature an etiology of the Veteran’s right knee disability. The entire claims file should be made available to and be reviewed by the examiner, including a copy of this remand, and it should be confirmed that such records were reviewed. No further examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: Please opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right knee osteoarthritis status post right total knee arthoplasty had its onset during service or is otherwise related to service. In addressing this question, the examiner should note the Veteran’s service treatment records (STRs) document a motor vehicle accident and comment on the Veteran’s contention that he injured his right knee during this accident. See June 1980 STR and October 2019 Board Hearing Transcript at 15. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of his right ankle disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Diagnose any right ankle disability present since December 2015. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran’s reported right ankle pain causes any functional impairment. (b) For each disability diagnosed in part (a), or any functional impairment identified, please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability: (1) had its onset in service or is otherwise related to service. In addressing this question, please acknowledge and comment on the Veteran’s June 1980 STRs, which document a right ankle sprain and note symptoms of pain with movement and swelling. Additionally, please comment on the Veteran’s lay statement that his ankle disability was incurred during service due such injury and that problems with his ankle have been continuous since that time. See October 2019 Board Hearing Transcript at 20. (2) is proximately due to his right knee disability; (3) has been aggravated (worsened beyond natural progression) by his right knee disability. Please note that it is not necessary that a right knee disability be service-connected, or even diagnosed, at the time any right ankle disability is incurred to support secondary service connection, and reliance on this fact in support of a negative opinion will render it inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Then schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot/toe disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should address the following: (a) Diagnose any bilateral foot/toe disabilities (orthopedic and skin) present since December 2015, to include left great toe ingrown toenail, left second toe missing toenail, Athlete’s foot, bunions, and fungus bilaterally. If any of the diagnoses are not warranted, reconcile your findings with diagnosis of the same in a March 2016 VA examination report (left great toe ingrown toenail and left second toe missing toenail) and the Veteran’s competent reports of athlete’s foot, bunions, and fungus. See October 2019 Board Hearing Transcript at 18. (b) For each disability diagnosed in part (a), please opine on whether it is at least likely as not (a 50 percent or greater probability) that such disability had its onset in service or is otherwise related to service. In addressing this question, please acknowledge and comment on the Veteran’s February 1979 STR, which documents a left great toe ingrown toenail and diagnoses of tinea pedis/onychomycosis and cellulitis in the left toe. Additionally, please comment on the Veteran’s lay statement that his skin condition in his bilateral toes was incurred during service and has been continuous since that time. See October 2019 Board Hearing Transcript at 18. If unable to provide a medical opinion, please state why. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.