Citation Nr: 20046490 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 16-53 603 DATE: July 13, 2020 ORDER An initial 70 percent rating for the psychiatric disability is granted. Entitlement to an initial compensable rating for status-post boxer’s fracture of the right hand is denied. An initial compensable rating for a headache disability is denied. FINDINGS OF FACT 1. The psychiatric disability more nearly approximates deficiencies in most areas. 2. The Veteran does not have ankylosis of the little finger, and the impairment does not result in effective amputation. 3. The headache disability does not result in prostrating attacks at least every two months. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9440. 2. The criteria for an initial compensable rating for status-post boxer’s fracture to the right hand have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5230. 3. The criteria for an initial compensable rating for a headache disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2003 to July 2014. Increased Rating 1. Psychiatric Disability A September 2014 VA examination record reveals the examiner’s determination that the Veteran’s psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. The record reports the Veteran’s history of a good relationship with his wife and relationships with his parents and siblings. He denied suicidal or homicidal ideation. He did report getting angry enough to punch holes in walls but denied being physical with people. He reported episodic overuse of alcohol. The record notes the existence of symptoms of depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, and difficulty adapting to stressful circumstances. He also endorsed irritability, hypervigilance, suspiciousness, and desire to self-isolate. The record reports that the Veteran was appropriately groomed. The Veteran responded to most questions with some hesitation and demonstrated a general reluctance to disclose personal/emotional information. July 2016 and May 2018 VA treatment record reveal findings of linear thought process, appropriate thought content, and “ok” mood with congruent affect. A November 2019 VA examination record reveals the examiner’s determination that the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he spent most of his time with his family and his primary social support was his wife. He was employed full time and enjoyed bowling for a hobby. The Veteran denied receiving regular mental health treatment since the previous examination. He endorsed irritability and low stress tolerance, especially when surrounded by commotion. He also reported persistent anxiety in crowded areas. He described being easily agitated with others if he perceived them as questioning him or being aggressive towards him. He believed he was a happy person but acknowledged that his mood could change quickly. He denied decreased motivation or interest; hallucination; delusion; panic attacks; feelings of hopelessness, hopelessness, or worthlessness; or suicidal or homicidal ideation. The record indicates that the Veteran’s psychiatric disability resulted in depressed mood, anxiety, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships, and difficulty adapting to stressful circumstances. The examiner noted that the Veteran had fair hygiene and full orientation. He was cooperative, alert, and engaged. Attention and concentration were mildly impaired. Mood was “ok,” and affect was congruent. Range of emotion was mostly flat in presentation. Speech was normal, judgment was intact, and insight was fair. The Veteran appeared genuine and forthcoming. Thought processes and thought content were normal. Memory was intact. The Veteran seeks a 70 percent rating for the service connected psychiatric disability. The Veteran’s psychiatric disability is evaluated under Diagnostic Code 9440, which provides a 50 percent disability rating 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. A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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 and 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 inability to establish and maintain effective relationships. The symptoms listed are not intended to constitute an exhaustive list, but rather 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). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Upon consideration of the evidence and resolving all doubt in favor of the Veteran, the Board finds a 70 percent rating is warranted for the period based on the evidence of symptoms including disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, and episodic impaired impulse control manifested by behavior such as punching walls. The Veteran has indicated that his appeal would be satisfied if the psychiatric disability were rated at 70 percent. See August 2015 Notice of Disagreement. Thus, the claim is granted. 2. Status-post Boxer’s Fracture, Right Hand A September 2014 VA examination record reveals the Veteran’s history of status-post right boxer’s fracture that had no symptoms. The Veteran denied flares. Range of motion testing revealed no limitation of motion or painful motion of any thumb or finger, including after repetition. There was no functional loss or impairment of any finger or thumb. Motor strength was full. There was not ankylosis. There was not abnormal finding on imaging, and the condition did not impact occupational functioning. A November 2019 VA examination record reveals Veteran’s history of dull pain over the fifth metacarpal, worse with changes in the weather, movement, and exertion. He reported difficulty typing on a keyboard for prolonged periods of time due to pain. Range of motion testing revealed normal motion for the right hand, including after repetition. There was mild pain with use of the fifth metacarpal. The examiner determined the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found that pain would significantly limit functional ability with repeated use over time and flares, so that maximum flexion of the little finger metacarpophalangeal joint would only reach 70 degrees instead of the 90 degrees shown initially and after repetition. Hand grip was full, and there was no atrophy. There was no ankylosis, and functioning was not so affected as to approximate amputation. The Veteran seeks a compensable initial rating for the service-connected right hand disability, which involves the right little finger. VA regulations provide a maximum noncompensable rating for limitation of motion of the ring or little finger. See 38 C.F.R. § 4.71a, Diagnostic Code 5230. The Board acknowledges that the Veteran has reported functional impairment due to symptoms such as pain. The Veteran is already in receipt of the highest schedular rating for limitation of motion of the little finger, however; thus, the regulatory provisions (38 C.F.R. §§ 4. 40, 4.45) pertaining to functional loss are not for application. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). For the same reason, the Board finds there is no prejudice in any VA examination failing to comply with § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). VA regulations provide higher ratings for amputation and ankylosis of the ring finger and hand. The record does not reveal any findings of ankylosis, and the November 2019 VA examiner determined that the Veteran’s impairment is not analogous to amputation. The Board finds the record also does not suggest any impairment beyond that contemplated by the current rating; notably, the symptoms reported by the Veteran are associated with the limitation of motion considered in the current rating. There is also no clinical evidence of impairment to a joint or area other than the right little finger. Thus, the claim is denied. 3. Headache Disability The Veteran seeks a compensable initial rating for the service-connected headache disability. Diagnostic Code 8100 provides that migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with characteristic prostrating attacks occurring on an average once a month over last several months warrant a 30 percent rating while migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define “prostrating;” nor has the Court. Cf. Fenderson, supra (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, the Board notes that, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” A September 2014 VA examination record reveals diagnosis of migraine. The Veteran denied use of medication. He did not experience non-headache symptoms with headaches and did not have prostrating attacks. The headaches did not affect occupational functioning. (Continued on the next page)   A November 2019 VA examination record reveals the Veteran’s history of tension headaches approximately four to five times per week, for which he took Tylenol or Excedrin. He reported headache pain and sensitivity to light during the headache. He reported that the head pain lasted less than one day. The record indicates that the Veteran had characteristic prostrating attacks less than once in two months. The Veteran reported that he “sometimes” has headaches with work that make it hard to concentrate. After review of the record, the Board finds the criteria for a compensable initial rating for the headache disability have not been met. Specifically, the record does not suggest that the Veteran has prostrating headaches at least every two months. The medical records do not suggest such a frequency, and the Veteran has not reported such frequency, though competent to do so. The Board acknowledges that the Veteran reported multiple headaches per week at the 2019 VA examination and has reported use of medication. Examiners determined the Veteran did not have prostrating episodes of headaches at least every two months after consideration of those histories, however, and the Veteran has not reported that the headaches are in fact prostrating more often than that depicted by examination records. Thus, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.