Citation Nr: 20046615 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-32 676 DATE: July 13, 2020 ORDER Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder prior to September 1, 2012 (excluding temporary total rating from August 6, 2012 to August 31, 2012), is denied. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder from September 1, 2012, is denied. Entitlement to a 50 percent rating for migraines, effective August 16, 2012, is granted. REMANDED Entitlement to service connection for a left lower extremity disability, to include as secondary to service-connected right ankle disability is remanded. Entitlement to service connection for a right lower extremity disability manifested by numbness and pain, to include as secondary to service-connected right ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. Prior to September 1, 2012, the Veteran’s acquired psychiatric disorder was most closely approximated by occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. 2. From September 1, 2012, the severity, frequency, and duration of the Veteran’s psychiatric symptoms have not more closely approximated total occupational and social impairment. 3. Throughout the appeal period, the Veteran’s migraines have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for an acquired psychiatric condition prior to September 1, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for an acquired psychiatric condition from September 1, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to an initial 50 percent rating for migraine headaches, but no higher, effective August 16, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to February 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 (migraines and bilateral lower extremities) and August 2010 (psychiatric disorder) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a hearing in May 2019. This case was previously before the Board in November 2019 when it was remanded for further development. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, which is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In regards the psychiatric disorders, the United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas;” that is, “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “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 examination.” Id. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 50 percent rating for acquired psychiatric disorder prior to September 1, 2012, is denied. The Veteran filed her claim for an acquired psychiatric disorder less than a year after her discharge from service in February 2009. Since being granted service connection in August 2010, the Veteran has asserted that she is entitled to an increased rating. The Veteran’s acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9433. Under this code, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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. For the period prior to September 1, 2012, the Veteran was provided VA examinations for her psychiatric disorders in November 2009, July 2010, and October 2010. All three examinations contain consistent findings regarding the severity of the Veteran’s symptoms. The examinations note mild to moderate symptoms, in the form of social withdrawal, low self-esteem, obsessive-compulsive symptoms, depression, sleep disturbances, feelings of hopelessness, difficulty concentrating, hypervigilance, paranoia, frequent nightmares, and occasional flashbacks. However, the examinations also note that the Veteran is able to independently take care of her financial affairs and activities of daily living. She consistently denied suicidal ideation, and her judgment and insight were consistently shown to be intact with no overt evidence of cognitive deficits. The examiners noted she was pleasant, cooperative, oriented to person, time, place and situation, and her speech was appropriate with linear thought process. The Board notes that during the period between February 2009 and September 2012, there are no VA treatment records or private medical evidence submitted by the Veteran that would support a rating in excess of 50 percent. The Board finds that the Veteran’s symptomatology during this period is contemplated in the 50 percent rating and does not result in occupational or social impairment with deficiencies in most areas. Therefore, the Board finds that in the absence of more severe symptomatology more nearly approximating a 70 percent rating during the period prior to September 1, 2012, the Veteran is not entitled to a rating in excess of 50 percent. 2. Entitlement to a rating in excess of 70 percent for an acquired psychiatric condition (excluding temporary total rating from August 6, 2012 to August 31, 2012) from September 1, 2012. A December 2012 rating decision increased the Veteran’s rating for her service-connected psychiatric disability from 50 to 70 percent based on examination findings and additional diagnosis of posttraumatic stress disorder (PTSD). During the Veteran’s October 2012 VA examination, the Veteran was diagnosed with posttraumatic stress disorder (PTSD), and reported recurrent distressing dreams of the traumatic event, diminished interest in significant activities, feelings of detachment from others, angry outbursts, problems with concentration, hypervigilance, sleep impairment, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, depression, and anxiety. Based on these findings, the Veteran’s rating was increased to 70 percent, effective September 1, 2012, as she displayed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. During a November 2017 VA examination, the Veteran showed symptoms consistent with those reported during the October 2012 examination with no indication of an increase in symptom severity. Her cognitive function was within normal limits per a total cognitive screening, she was oriented to person, place, time and situation, she was alert and cooperative with an anxious mood, her speech was normal, and her thought processes were concrete and focused. She reported no suicidal ideation and was able to independently perform activities of daily living. A December 2019 VA examination showed the Veteran reporting a worsening of her symptoms, such as focusing problems and having to repeat things in her head seven times, anxiety, paranoia, and snapping at others. The other symptoms reported were consistent with those noted above, such as irritability and angry outburst, persistent negative emotional state/depressed mood, feelings of detachment from others, hypervigilance, sleep disturbance, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that she was tense and anxious, but oriented in all spheres with logical and goal-oriented thought processes, and no reports of suicidal ideation. It was also noted that the Veteran was able to manage her financial affairs. The Board notes since September 1, 2012, the Veteran has not reported symptoms severe enough to result in total occupational and social impairment, such as gross impairment of thought processes, persistent danger to self and others, grossly inappropriate behavior, inability to remember names of close relatives, occupation or own name, or other symptoms of similar severity which would warrant a 100 percent rating. There is no evidence that the examiners, throughout the time periods discussed above, were not competent or credible, as the reports were based on reviews of the Veteran’s medical records and in-person examinations of the Veteran; therefore, the Board finds they are entitled to significant probative weight as to the severity of the disability at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the record, the Board finds that the evidence fails to establish the Veteran has experienced total occupational and social impairment as a result of her acquired psychiatric disorders from September 1, 2012. Although there is no doubt the Veteran has significant deficiencies in her occupational and social functioning and favors social isolation as a result of her psychiatric symptoms, this nature and degree of impairment is accounted for in her current 70 percent rating. The Board finds the facts of this case do not show that the Veteran experiences total occupational and social impairment as result of her psychiatric disorders, as required for a 100 percent schedular rating under the General Rating Formula for Mental Disorders. Therefore, a rating in excess of 70 percent from September 1, 2012, is denied. 3. Entitlement to a 50 percent rating for migraines, effective August 16, 2012, is granted. The Veteran asserts that she in entitled to a higher rating for her migraines. The Veteran’s migraines are rated under Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a. Under DC 8100, a 30 percent disability rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent disability rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The 50 percent rating is the maximum rating provided under code 8100 and it is the only rating in excess of 30 percent that is available thereunder. 38 C.F.R. § 4.124a, DC 8100. The Veteran filed a claim for service connection for migraines in August 2012 and was provided a VA examination in December 2012. The examination noted a diagnosis of migraines that begin in the right temporal region. The Veteran characterized the pain as throbbing and intense, and experiencing nausea, vomiting, and sensitivity to light and sound. She reported having 20 headaches in a 30-day period, with 15 of them prostrating, lasting between several hours to an entire day. In addition, the examiner noted the Veteran has very frequent and prolonged attacks of migraine headache pain and that they impede and impact her functional ability at least every other day. The Veteran was granted service connection in a December 2012 rating decision and assigned a 30 percent rating. The Veteran appealed the 30 percent rating, stating that her migraines occur daily with pain to the point that she is in tears. An October 2015 Headaches Disability Benefits Questionnaire (DBQ) had consistent findings of severity, noting very frequent prostrating and prolonged attacks of migraine headache pain with nausea, vomiting, sensitivity to light and sound, as well as requiring the Veteran to be in a dark, quiet room for several hours 3-5 days a week. Furthermore, during her May 2019 Board hearing, the Veteran made statements regarding her symptoms that are consistent with those she made during her VA examinations. A January 2020 VA examination found consistent findings with those noted in the previous examinations. The Veteran reported chronic severe headaches several times per week, pulsating throbbing pain on the right side of her head, nausea, vomiting, changes in her vision, and sensitivity to light and sound. The examiner noted the Veteran having very frequent prostrating and prolonged attacks of migraines that are productive of severe economic inadaptability. The examiner additionally stated that her migraine condition has contributed to her unemployment. The Board finds that throughout the appeal period, the Veteran has met the criteria for a 50 percent rating for her migraines. In a February 2020 rating decision, the AOJ increased the Veteran’s rating to 50 percent, effective December 19, 2019. However, as the Veteran’s symptoms have been consistently severe throughout the appeal period the Board finds that an effective date of August 16, 2012, the date of her claim, should be granted for the 50 percent rating. Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a provides a maximum rating of 50 percent. Thus, the Veteran’s service-connected migraine headaches has been assigned the maximum schedular rating available for the disorder. 38 C.F.R. § 4.124a, Diagnostic Code 8100. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.”). REASONS FOR REMAND 1. Entitlement to service connection for a left lower extremity disability, to include as secondary to service-connected right ankle disability. 2. Entitlement to service connection for a right lower extremity disability manifested by numbness and pain, to include as secondary to service-connected right ankle disability. Although the Board regrets the additional delay, another remand is necessary for issues 1-2. The development following the Board’s November 2019 remand did not comply with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran claimed these conditions as numbness and pain in her bilateral legs secondary to her service-connected right ankle disability, with a notation in parenthesis regarding sciatic nerve. The record indicates the Veteran has sciatic lumbar radiculopathy of the left lower extremity. In reference to the right lower extremity claim, the record notes symptoms such as numbness and pain, but the medical records do not reference a sciatic nerve condition in the right lower extremity. The Board will therefore re-characterize the Veteran’s claim as entitlement to service connection for a right lower extremity disability manifested by numbness and pain, to include as secondary to service-connected right ankle disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that when a claimant makes a claim, the claimant is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The Veteran and/or representative may clarify the scope of the right lower extremity claim while on remand, if desired. In January 2020, the Veteran was provided a Peripheral Nerves Conditions VA examination. In regard to the left lower extremity, the Veteran was found to have sciatic lumbar radiculopathy. The examiner stated that the Veteran’s degenerative disc disease and bulging disc of the lumbar spine is the cause of the Veteran’s sciatic lumbar radiculopathy as her displaced disc causes nerve compression. The examiner concluded that the Veteran’s left lower extremity condition was not due to service as there was no evidence of lumbar radiculopathy or degenerative disc disease of the spine in service treatment records, and the onset of symptoms was in 2012. In regard to the right lower extremity, the examiner found that there was no objective evidence of a right lower extremity radiculopathy or peripheral nerve condition. However, the January 2020 examiner did not address the multiple in-service reports of joint pain and sprain of the knee and leg, as directed by the November 2019 Board remand. In addition, the Board notes that the VA peripheral nerves examination provided a diagnosis for the left knee condition but only addressed whether the Veteran had a right lower extremity radiculopathy or peripheral nerve condition. In light of the decision by the United States Court of Appeals for the Federal Circuit, Saunders v. Wilkie, No. 15-975 (Fed. Cir. April 3, 2018), the Board finds that the VA examiner must offer an opinion as to whether there is any objective impairment of functioning as a result of any undiagnosed right lower extremity disability, and if so, whether that is related to service. Therefore, the Board must remand the appeal in order to obtain an addendum opinion (and examination, if found necessary) that addresses the above deficiencies. See Stegall, 11 Vet. App. at 268. 3. Entitlement to a TDIU. The Board finds that the issue of entitlement to a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran’s employment status and history are unclear at this point. On remand, the Veteran must be provided a notice letter and an application for entitlement to a TDIU. The matters are REMANDED for the following action: 1. Obtain an addendum opinion (an examination should be scheduled only if found necessary by the medical professional asked to provide the opinion). The examiner must identify all bilateral lower extremity disabilities found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability of the left or right lower extremity is related to an in-service injury, event, or disease. In the opinion, the examiner must address the multiple in-service reports of joint pain and sprain of the knee and leg, as well as the in-service injury documented in the record from the Veteran jumping off a truck. The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any disability of the left or right lower extremity is caused or aggravated by the Veteran’s service-connected right ankle disability. Causation and aggravation are separate concepts and must be addressed individually. With respect to the right lower extremity, if the Veteran does not have diagnosable pathology for her right lower extremity pain, the VA examiner must provide an opinion on whether the right lower extremity pain causes functional impairment of earning capacity. If so, the examiner is asked to provide an opinion as to whether the right lower extremity pain that causes functional impairment of earning capacity is at least as likely not attributable to an in-service injury, event, or disease or if it is caused or aggravated by the Veteran’s service-connected right ankle disability? The examiner must provide a detailed explanation of the medical opinion provided. 2. Send the Veteran a notice letter with respect to her claim of entitlement to a TDIU. Provide the Veteran a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, for completion and return to the AOJ. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, Associate 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.