Citation Nr: 20040177 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 13-04 976 DATE: June 11, 2020 ORDER Entitlement to service connection for a bilateral knee disability is denied. Entitlement to service connection for a low back disability is denied. Entitlement to higher initial disability ratings for migraine headaches, rated 30 percent prior to October 24, 2017, and 50 percent thereafter, is denied. Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) prior to April 14, 2017, is granted. Entitlement to higher disability ratings for PTSD, rated 70 percent from April 14, 2017 to August 17, 2017; and 100 percent from August 18, 2017, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 18, 2017, is remanded. FINDINGS OF FACT 1. A bilateral knee disability was not manifested in service and is not otherwise attributable to his active service. 2. A low back disability was not manifested in service and is not otherwise attributable to his active service. 3. For the period prior to October 24, 2017, the Veteran’s migraine headaches were not productive of severe economic inadaptability. 4. From October 24, 2017, the Veteran is in receipt of the maximum schedular rating for migraine headaches. 5. Prior to April 14, 2017, the Veteran’s PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 6. From April 14, 2017 to August 17, 2017, the Veteran’s PTSD has not been manifested by symptoms analogous to total occupational and social impairment. 7. From August 18, 2017, the Veteran is in receipt of the maximum schedular rating for PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to higher disability ratings for migraine headaches, rated 30 percent prior to October 24, 2017, and 50 percent thereafter have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 4. The criteria for an initial rating of 70 percent for PTSD, prior to April 14, 2017, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 5. The criteria for entitlement to higher disability ratings for PTSD, rated as 70 percent from April 14, 2017 to August 17, 2017, and 100 percent from August 18, 2017, have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from July 1988 to January 1992, to include service in the Persian Gulf. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal and the Southwest Asia Service Medal. The matters of service connection for a bilateral knee disability and for a low back disability are before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision of by a Department of Veterans Affairs (VA) Regional Office (RO). The matter of the rating for PTSD is on appeal from a December 2011 rating decision that granted service connection for PTSD and assigned a 50 percent rating, effective April 22, 2011. The matter of a rating for migraine headaches is on appeal from a September 2013 rating decision that granted service connection for migraine headaches and assigned a 0 percent rating, effective August 28, 2012. In a February 2014 Decision Review Officer (DRO) Decision, a 30 percent rating was assigned for migraine headaches, effective August 28, 2012. In April 2016, the Board remanded the claims for further development. The claim for an increased rating for migraine headaches was remanded for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the Veteran perfected an appeal with respect to this claim. The Board had also remanded claims for service connection for bilateral hearing loss and for multiple lipomas. In an April 2018 rating decision, the RO granted service connection for bilateral hearing loss and for multiple lipomas residual scars. The Veteran disagreed with the initial ratings assigned for the disabilities, but he did not perfect an appeal after a SOC was issued in April 2019. In a May 2017 rating decision, the RO assigned a 70 percent rating for PTSD, effective April 14, 2017. In a March 2018 rating decision, the RO granted a 100 percent rating for PTSD, effective August 18, 2017. The Veteran is also in receipt of special monthly compensation at the statutory housebound rate from that point, thus rendering TDIU moot from that period on. However, the claim for TDIU remains on appeal for the period prior to August 18, 2017. In a December 2018 rating decision, the RO assigned a 50 percent rating for migraine headaches, effective October 24, 2017. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 1. Bilateral Knee Disability and Low Back Disability The Veteran has current disabilities of degenerative joint disease of both knees and degenerative disc disease of the lumbar spine. The Veteran’s service personnel records show that the was awarded a parachute badge. The Veteran has consistently contended making multiple parachute jumps causing strain and injury to his low back and knees. Initially, the Board notes that the Veteran’s service treatment records are missing. In this case, there is no allegation of relevant in-service treatment. However, in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Following VA examinations of the knees and back in August 2013, the examiners found that both the knee and back complaints were unrelated to service because there was no documentation of knee or back problems in service, or for several years thereafter. In the April 2016 remand, the Board found that citing to the lack of documentation of knee and low back disabilities in service was not an adequate rationale, particularly when the service treatment records are unavailable. Also, the examiners failed to acknowledge the Veteran’s reports of multiple jump landings in service and possibility of knee and back injuries related to such activities. The Board remanded the claims for further VA examinations. The Veteran underwent VA examinations of the knees and spine in April 2018. He reported having daily pain in both knees and lower back since the early 1990s which has increased in intensity. The examiner concluded that it was less likely than not that the Veteran’s degenerative disc disease was caused by or related to service, to include repeated trauma due to multiple jump landings. The examiner explained that x-rays of the lumbar spine in October 2011 revealed only minimal degenerative changes. The examiner stated that these changes should be moderate to severe if the onset initiated in active service. Moreover, there was no radiological evidence of old trauma in the x-rays. Similarly, the examiner concluded that it was less likely than not that the Veteran’s current degenerative joint disease of the both knees was caused by or related to service, to include repeated trauma due to multiple jump landings. The examiner explained that joint MRI’s in October 2017 revealed only minimal degenerative changes. The examiner stated that these changes should be moderate to severe if the onset was initiated in active service. The examiner opined that the low back disability and bilateral knee disabilities were as likely as not related to inflammatory polyarthritis (rheumatoid) and well as early degenerative process. The Board finds that the preponderance of the evidence is against a finding that the Veteran’s bilateral knee disability and low back disability are related to service. The April 2018 VA examinations were based on upon thorough review of the record and analysis of the Veteran’s entire history. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with the knees and spine for many years after active service. The examiner determined that the Veteran’s in-service multiple jump landings were less likely as not related to any current impairment of the knees and/or spine. The Veteran has reported longstanding symptoms related to his knees and back; his reports of symptoms and their onset are considered competent. However, this lay evidence is inconsistent with no objective report of knee and back pain/symptoms for many years following the Veteran’s separation from service. Further, the objective findings are more credible and more probative than his after-the-fact lay assertions. The Board concludes that the objective findings of the onset of knee and back disabilities for many years following service are far more probative and credible than the lay evidence submitted in support of the claims for benefits. The Board finds that the Veteran’s statements with regard to a nexus between his knee and spine disabilities and service to be of minimal probative value and outweighed by the VA opinions, prepared by a skilled neutral professional. Accordingly, the claims for service connection for a bilateral knee disability and for a low back disability are denied. Increased Rating Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 2. Migraine Headaches The Veteran is in receipt of a 30 percent rating for migraine headaches prior to October 24, 2017, and 50 percent thereafter. Under Diagnostic Code 8100, a rating of 30 percent is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating, the maximum scheduler rating available, is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating,” nor is there a definition provided by the U.S. Court of Appeals for Veterans Claims. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). According to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007), “prostration” is defined as “extreme exhaustion or powerlessness.” In a July 2013 statement, the Veteran reported having daily headaches and that some of these headaches turn into migraine headaches that become incapacitating. He stated that he takes medication for treatment of the headaches but some days the medication does not help. VA treatment records from June 2013 to January 2014 show the Veteran’s complaints of frequent headaches. He reported daily headaches with severe migraines that occur two to three times per month. His medications included Imitrex. It was noted that the frequency and severity of the headaches had somewhat stabilized after the use of various medications. On VA examination in November 2018, the Veteran reported that his headaches were more intense and harder to control. He reported daily headaches from waking up to lying down and that the headaches increase with bright light. He also had nausea and irritability. His medications included Fioricet. The location of the headaches was on both sides of the head. He had very prostrating and prolonged attacks of migraines that were productive of severe inadaptability. For the period on appeal prior to October 24, 2017, the above findings do not support a rating in excess of 30 percent. In reaching this conclusion, the Board considered the Veteran’s lay statements describing his migraine symptoms and medical evidence of record but finds that the most probative evidence of record does not show that the Veteran experienced severe economic inadaptability to warrant a 50 percent rating prior to October 24, 2017. For the period from October 24, 2017, a rating higher than 50 percent for migraine headaches is not available under the rating schedule. The Board finds that a higher rating is not warranted under any other rating criteria, as the Veteran’s symptoms, mainly frequent prostrating headaches, with nausea and light sensitivity, have been accounted for by the criteria listed in Diagnostic Code 8100. Accordingly, an increased rating for migraine headaches is not warranted. For these reasons, the Board finds that at no time during the periods in question has the disability warranted more than a 30 percent evaluation prior to October 24, 2017, or more than a 50 percent evaluation since. The claim is denied. 3. PTSD The Veteran is in receipt of a 50 percent rating for PTSD prior to April 14, 2017; a 70 percent rating from April 14, 2017 to August 17, 2017; and a 100 percent rating from August 18, 2017. The Veteran’s PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9400. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. A maximum 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. On VA examination in August 2011, the Veteran’s symptoms were reported as the following: depressed mood; anxiety; chronic sleep impairment; and obsessional rituals which interfere with routine activities. The examiner determined that the Veteran’s PTSD was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. In his October 2013 notice of disagreement, the Veteran reported that had been treated for symptoms that meet the criteria for a higher evaluation. He stated that he struggled with the following symptoms: suicidal/homicidal thought on a daily basis; consistent panic attacks; horrible depression; and horrible seclusion from friends, family, work and life outside of home. He stated that he unable to continue with school. He reported having attendance trouble at work. VA treatment records from 2012 to 2016 document the Veteran’s ongoing PTSD symptoms to include extreme depression, anxiety, panic attacks and suicidal ideation and thoughts. On VA examination in April 2017, the Veteran’s symptoms were reported as the following: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was also noted to have low energy, poor sleep, strained concentration, poor appetite, and suicidal ideation. The examiner determined that the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On VA examination in March 2018, the Veteran’s symptoms were reported as the following: depressed mood; anxiety; suspiciousness, panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking, gross impairment in thought processes or communication; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner determined that the Veteran’s PTSD was manifested by total occupational and social impairment. As noted above, the evidence of record prior to April 14, 2017, reflects that the Veteran had ongoing depression, anxiety, panic attacks and suicidal ideation. “VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment.” Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As such, the Board finds that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 70 percent for his service-connected PTSD prior to April 14, 2017. However, the criteria for a disability rating of 100 percent have not been met or more nearly approximated at any time prior to April 14, 2017. The evidence shows no symptoms of persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, or memory loss for names of close relatives, own occupation, or own name. Prior to April 14, 2017, the record does not at any point reflect both total occupational and social impairment. Also, the evidence does not demonstrate that the Veteran meets the criteria for a rating higher than 70 percent from April 14, 2017 to August 17, 2017. The Veteran did not show evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; or disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Thus, from April 14, 2017 to August 17, 2017, the evidence does not indicate that his PTSD symptoms have resulted in total occupation and social impairment. From August 18, 2017, the Veteran has been in receipt of a 100 percent schedular rating for his PTSD. The 100 percent rating is the highest/maximum schedular rating under Diagnostic Code 9411. There is simply no basis for assigning a higher rating. REASONS FOR REMAND 1. The claim of entitlement to a TDIU prior to August 18, 2017, is remanded. As noted above, in a March 2018 rating decision, the RO granted a 100 percent rating for PTSD, effective August 18, 2017, thus rendering TDIU moot from that period on. However, the claim for TDIU remains on appeal for the period prior to August 18, 2017. A review of the record shows that the Veteran last worked full-time as a licensed practical nurse in July 2017. However, prior to leaving his employment, the Veteran reports that he had trouble working due to his PTSD. Specifically, he reports that he had used 338 hours of leave due to his condition. He reported that he lost so much time from his job that it should have been considered a “protected environment.” In a statement received in August 2017, the Veteran’s health care provider stated that he had received residential treatment for PTSD for six weeks. It was further noted that the Veteran’s interpersonal interactions with coworkers, supervisors and patients were affected by his PTSD. Therefore, the Board finds that a remand is necessary in order to determine whether his employment was in a protected environment. (Continued on next page) The matters are REMANDED for the following action: With any necessary assistance from the Veteran, send a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) to the Veteran’s previous employer and ask that it be completed and returned, with information regarding any accommodations that were made for the Veteran’s service-connected disabilities. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, Counsel 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.