Citation Nr: 20005339 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-36 464 DATE: January 23, 2020 ORDER Entitlement to a compensable rating for post-concussive syndrome with headaches is denied. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to TDIU is remanded. FINDING OF FACT The Veteran has not had characteristic prostrating attacks of migraine headache pain averaging one in two months over several months. CONCLUSION OF LAW The criteria for a compensable rating for post-concussive syndrome with headaches are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from June 1983 to February 1988, July 1996 to March 1997, June 2008 to June 2010, and January 2011 to August 2012. The appeal originates from a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Court of Appeals for Veterans Claims vacated and remanded the November 2018 Board decision with respect to the issues of a compensable rating for post-concussive syndrome with headaches and service connection for PTSD pursuant to a joint motion for partial remand (JMPR). The Board notes that the issues of service connection for sinusitis and pseudofolliculitis barbae were remanded in November 2018. The issues are under development by the RO and will be addressed at a later date. Lastly, in the JMPR, the Secretary noted that, while not conceding error, the appellant/Veteran would ask the Board to address whether December 2013 and February 2014 statements from the Veteran kept the October 2013 rating decision (which denied service connection for PTSD and sinusitis) pending rather than final and whether the July 2014 statement constituted an informal increased rating claim for headaches or notice of disagreement (NOD) with the rating decision. To date, correspondence or argument from the Veteran on these questions has not been submitted. Moreover, even if such had been submitted, the Board finds that these questions are not ripe for appellate consideration. Entitlement to a compensable rating for post-concussive syndrome with headaches. The Veteran’s headache disability is rated under Diagnostic Code 8100. A 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating requires characteristic prostrating attacks occurring on average once a month over last several months. A 10 percent rating requires characteristic prostrating attacks averaging one in 2 months over last several months. At the October 2013 examination, the Veteran reported no prostrating attacks of headache pain, which is consistent with treatment records for this period. Indeed, such a report was not made until the August 2016 examination, at which time he reported an average of one prostrating attack per month over the last several months. However, this conflicts with other statements he made during this period. At VA neurology consultations in May and June 2016, he reported mild symptomology, with headaches that are intermittent and subside after a few hours without reference to incapacitation. The Board affords greater weight to the statements offered for treatment as they are more likely an accurate reflection of his symptomology. See Rucker v. Brown, 10 Vet. App. 67 (1997) (ascribing heightened credibility to statements made to physicians for purposes of treatment). This conclusion is reinforced by the January 2017 examination when the Veteran reported no prostrating attacks. The Veteran underwent another examination in July 2017 and described prostrating attacks occurring two to three times per week over several months that required him to leave his employment due to missing multiple days of work each week. The weight of the lay evidence, however, casts doubt on this reporting. At an April 2017 medical appointment, he indicated that he retired because of joint pains and behavioral health issues rather than headaches. See October 2017 CAPRI. His application for Social Security Administration disability benefits in April 2017 does not list headaches as a condition affecting employment and describes migraine episodes occurring only three to four times a year without reference to incapacitation. His July and October 2018 formal claims for TDIU also do not list headaches as a disability affecting employment or causing any time lost at work. Following submission of a private medical evaluation in October 2017, the Veteran has reported 10 prostrating attacks per month ostensibly since being approved for unscheduled FMLA leave in October 2016. See October 2017 Statement. The totality of the evidence, however, fails to establish characteristic prostrating attacks. The FMLA form completed by his physician is vague and contradictory, stating that the Veteran does not have flareups which prevent him from performing job functions while also noting that it is medically necessary for him to be absent from work due to flareups. No explanation was provided for this discrepancy. Moreover, when he was seen for headaches in August 2017, which was only two months earlier, the Veteran only reported three to four headaches per week lasting approximately 45 minutes to an hour without reference to incapacitation. With respect to the October 2017 private evaluation, the evaluator noted acute attacks of migraines several times per week without indicating whether these attacks are prostrating. There simply is no basis for an increased rating, to include a staged rating, at any time during the appeal. The Board affords greater weight to the Veteran’s statements offered for treatment purposes, which tend to indicate that he does not have characteristic prostrating attacks averaging one in two months over several months. The statements where he described worse symptomatology were made in instances when he was pursuing compensation. There is clear precedent that the Board may consider the appellant’s self-interest when determining credibility and weight. Pond v. West, 12 Vet. App. 341, 345 (1999). His lay statements asserting more severe symptomology conflict with the weight of the evidence as discussed above. A compensable rating for post-concussive syndrome with headaches must therefore be denied. Consideration is given to other evidence of record. The Veteran challenges the adequacy of the January 2017 examination, contending that the examiner did not accurately report his lay statements. See October 2017 Statement. The Board has reviewed the report and found no indication from the examination report that the examiner misreported the Veteran’s statements. The Board notes the lay statements from the Veteran’s spouse regarding his headaches, but such statements are too vague regarding the frequency and duration of symptoms to serve as the basis for an increased rating. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran contends that he has a diagnosis of PTSD related to service. He is already service-connected for adjustment disorder with anxiety and depression, and VA has conceded a stressor based on fear of hostile military or terrorist activity. See September 2015 SOC. In the JMPR, the parties agreed that remand is required for a new examination with opinion to reconcile conflicting medical evidence regarding whether there is a diagnosis of PTSD. Accordingly, remand is necessary to ascertain the nature and etiology of any PTSD diagnosis. 2. Entitlement to TDIU is remanded. In the JMPR, the parties agreed that the issue of TDIU was raised by the Veteran’s testimony in April 2017. He filed formal TDIU claims in July and October 2018 initially asserting that he became too disabled to work on February 17, 2017 then indicating that he became too disabled to work in 2017. He was employed full-time as a mail carrier until he stopped working in latter part of March 2017. By a January 2019 rating decision, the Veteran was granted a total schedular rating from April 1, 2017. Such does not render the TDIU question moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (held that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an additional disability of 60 percent or more (housebound rate)). Given that a psychiatric disorder is one of the asserted causes of the Veteran’s unemployability and that the establishment of service connection for PTSD may affect his rating for a portion of the relevant appeal, the issue of TDIU must be deferred at this time. The matters are REMANDED for the following action: Schedule the Veteran for a PTSD examination. The examiner should address the following: 1. Specify whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD. If a diagnosis of PTSD is not made, indicate which criteria were not met and reconcile the finding with the evidence of record, including medical treatment records showing an apparent diagnosis of PTSD. 2. Is it at least as likely as not that PTSD had its onset in service or is otherwise etiologically related to any in-service stressor? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals M. Alhinnawi, Attorney for the Board Department of Veterans Affairs 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.