Citation Nr: A20007314 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191007-41181 DATE: April 30, 2020 ORDER An initial disability rating higher than 70 percent for post-traumatic stress disorder (PTSD) is denied. Service connection for migraine headache disability is granted. Service connection for low back disability is denied. Service connection for neck disability is denied. FINDINGS OF FACT 1. The Veteran’s PTSD has been manifested by symptomatology more nearly approximating occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The Veteran’s migraine headaches began during active service. 3. The most probative evidence does not demonstrate that the Veteran’s currently diagnosed low back disability manifested during, or as a result of, active military service. 4. The most probative evidence does not demonstrate that the Veteran’s currently diagnosed neck disability manifested during, or as a result of, active military service. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.125, 4.126(a), 4.130, Diagnostic Code 9411. 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for neck disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the August 2019 decision, filing VA Form 10182, requesting the Board consider Direct Review. Accordingly, the Board will review the evidence of the record at the time of the August 2019 rating decision. Increased Rating Psychiatric disabilities, such as anxiety and depression, are evaluated under the General Rating Formula for Mental Disorders (pertinent portions listed below). See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 100 percent disability rating 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; or memory loss for names of close relatives, own occupation, or own name. Id. A 70 percent disability rating requires 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); or inability to establish and maintain effective relationships. Id. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vasquez-Claudio v. Shinseki, 713 F. 3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran’s post-traumatic stress disorder (PTSD) is rated as 70 percent disabling. She contends that her symptomatology is more severe than contemplated by the disability rating assigned. The Veteran filed her original claim for service connection in March 2019. As stated above she elected Direct Review. The Veteran has received mental health treatment at VA from April 2014 through at least July 2017. These records fall outside the appeal period and a review of these records do not reveal symptomatology consistent with a 100 percent rating. During the appeal period, she had one VA examination and one private examination for her PTSD. The pertinent information from treatment and the examinations will be summarized below. A November 2018 VA addendum note reflects that the Veteran did not meet high risk flag criteria. There was no suicidal intent with inability to maintain safety within the past 30 days and no suicidal behavior/attempts within the past 90 days. A November 2018 VA crisis line note shows a call with the Veteran where she reported being out of refills for her anti-depressants. She denied current and past suicidal ideation and stated that she had an attempt “years ago.” A private examiner completed a March 2019 review PTSD Disability Benefits Questionnaire (DBQ). The Veteran was diagnosed with PTSD, major depressive disorder, and alcohol use disorder. The examiner attributed the following symptoms to the PTSD: exaggerated startle response, explosive anger, constantly anxious, constantly feeling something dreadful is about to happen, nightmares, and obsessive ruminations. The Veteran reported chronic anxiety, depression, crying, spells, irritability, racing thoughts, suspiciousness of others, impulsivity, and difficulties achieving sleep. Due to persistent harassment and past experiences of trauma she often experiences panic attacks and will jump when others touch her or when she hears loud noises. Such traumatic experiences were also noted to prompt extreme sensitivity and a belief that she cannot adequately function which significantly interferes with her ability to maintain steady employment or perform tasks appropriately. She speaks to her two sons approximately twice a year. However, it was noted that when she does speak to her sons the conversations are loving and warm. She is currently married to her fourth husband and described him as “the only one that ever stuck by me.” She described her symptoms as a 10 out of 10 in terms of severity and she will utilize alcohol in excess, typically consuming a liter of alcohol every two days. She also engages in self-help work, which has prompted to mildly aid in her difficulties. She reported that she desires professional assistance to overcome her symptoms and to resolve her past trauma as well as improve her functioning across settings. She reported a history of suicidal ideation and/or attempts. She is likely to be preoccupied with suicide and death and to be at risk for current suicidal ideation and attempts. This risk may be exacerbated by poor impulse control and substance abuse. Regarding thought dysfunction, she reported unusual thought processes. She is likely to experience thought disorganization, to engage in unrealistic thinking, and to believe she has unusual sensory-perceptual abilities. Her aberrant experiences may include somatic delusion, and they may be substance-induced. She reported significant persecutory ideation such as believing that others seek to harm her. She is likely to be suspicious of and alienated from others, to experience interpersonal difficulties as a result of suspiciousness, and to lack insight. She is likely to have poor impulse control, and to experience conflictual interpersonal relationships. She is very likely to have a history of problematic use of alcohol or drugs, to be sensation seeking and to have had legal problems as a result of substance abuse. She is likely to be introverted, to have difficulty forming close relationships and to be emotionally restricted. The symptoms for VA rating purposes were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, and inability to establish and maintain effective relationships. The examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation. The examiner also concluded that due to complex trauma, interpersonal difficulties, possible suicidal ideation and maladaptive coping techniques she will require professional intervention in order to improve her functioning and quality of life. During the August 2019 VA examination, the Veteran reported being verbally threatened with rape by a soldier. She was told that her “life expectancy is now three seconds.” She was the only female in field training exercises, and she had to sleep on the ground rather than in a tent. She was sexually harassed by a platoon sergeant and was not taken seriously when she reported the harassment to a senior officer. She joined the U.S. Army in 1982 and was discharged in 1986, Chapter 7 before end of term of service due to erroneous entry. Onset of cannabis and alcohol abuse occurred in service, with the alcohol abuse continuing to present. Post-military she underwent 30 days, in-patient substance abuse treatment. She is married and has two adult children. Her employment has been unstable since service. She is currently unemployed. Upon mental status examination, the Veteran was in casual dress without observable deformities. She was oriented to person, place, and time. There was no observable gait or posture problems. Expression was tense. Her mood was anxious with mood congruent affect. Attitude was cooperative. There was no unusual psychomotor movements or behaviors. She was alert, awake, and focused. Speech was normal in volume, tone, and rate. She had good enunciation quality. Her thinking was logical, and goal directed. Observable cognitive function suggests average capacity in domains of memory and executive function. There were no psychotic thoughts or suicidal or homicidal ideation. No hallucinations or delusions were reported. The symptoms for VA rating purposes were depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with reduced reliability and productivity. The preponderance of the evidence does not support a rating higher than 70 percent at any time period on appeal. Specifically, the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating total occupational and total 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; or memory loss for names of close relatives, own occupation, or own name. At no time during the appeal period did the Veteran’s PTSD manifest in total occupational and social impairment. In fact, the August 2019 VA examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. The March 2019 private examiner concluded that the Veteran’s level of impairment resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks, consistent with a 30 percent disability rating. The Board has fully considered the frequency, severity, and duration of all the Veteran’s psychiatric symptoms with respect to their effect on her overall occupational and social functioning, and finds they support a 70 percent rating. The record shows that the Veteran’s appearance was described as casual dress without observable deformities. She was oriented to person, place, and time. Attitude was cooperative. She was alert, awake, and focused. Speech was normal in volume, tone, and rate. Her thinking was logical, and goal directed. During the March 2019 private examination, she exhibited symptoms of poor impulse control and possible suicidal ideation. The examiner stated that the Veteran is likely to experience thought disorganization and to engage in unrealistic thinking. Her aberrant experiences may include somatic delusion, and they may be substance-induced. These are all consistent with the currently assigned 70 percent rating. During the August 2019 VA examination she exhibited symptoms of difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene—all consistent with a 70 percent rating. The Veteran did not show symptoms consistent with total occupational or social impairment at any time during the appeal period. She does not have gross impairment of 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, or disorientation to time or place. Neither the private examiner or the VA examiner opined that the Veteran’s psychiatric disorder symptoms resulted in total occupational and social impairment. In fact, the March 2019 private examiner’s conclusion is more consistent with a 30 percent rating and the August 2019 VA examination illustrates an assessment more consistent with a 50 percent disability rating. However, the Board will not disturb the 70 percent rating assigned. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran. The Board understands her belief that her symptoms warrant a disability rating higher than 70 percent. However, the Board has considered the Veteran’s statements in conjunction with the medical evidence in finding that a rating higher than 70 percent is not warranted. Even considering the Veteran’s reports, the most probative evidence shows significant occupational and social impairment as evidenced by her 70 percent rating, but it does not show that she has total occupational and social impairment due to her PTSD symptoms. The Board finds that the Veteran’s deficiencies must be “due to” symptoms listed for that rating level, “or others of similar severity, frequency, and duration.” Vasquez-Claudio, 713 F.3d at 117. The symptoms noted during the March 2019 and August 2019 examinations are of similar severity, frequency, and duration of those noted under the criteria for a 70 percent rating. A rating higher than 70 percent for PTSD is denied. Service Connection Migraine headaches During the August 2019 rating decision, the RO made two favorable findings, a current diagnosis of tension headaches and sufficient service to meet the minimum requirement for presumptive service connection. There is also competent and credible medical evidence of record to indicate a migraine headache disability. See March 2019 private evaluation. As there is a current diagnosis of migraine headaches the remaining question before the Board is whether there is an in-service disease or injury to which such disability is etiologically related. Migraine headaches are considered an organic disease of the nervous system. Thus, service connection may be based on credible evidence of continuity of symptomatology alone under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran reported that her migraine headaches first started in 1982, during service. She described experiencing stress and anxiety and how she feels it caused her headaches. She may have gone to the clinic for treatment, but she did not complain much because she wanted to perform her duties. She stated that she continues to suffer from migraines to the present day, getting headaches two to three times a week. She described the pain as a tight pulling sensation mainly on the right side of her neck and head. It takes time to go away, often resolving after about three to four days. She takes over the counter medication to treat it. A March 2019 evaluation by a private examiner has been submitted. The private examiner concluded that the Veteran suffered from migraine headaches during active military service. It was noted that the Veteran stated service connection was warranted as an extension to her neck disability. The Veteran underwent a VA examination in August 2019. The VA examiner opined that the Veteran’s migraines are not a result of her neck disability. The Board notes that the Veteran is competent to provide lay evidence of her symptomatology, to the extent her symptoms are directly observable by her and do not require specialized medical or other training to describe. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465, 467-69 (1994). The Board finds the Veteran a credible reporter of the onset of her migraine headaches disability symptoms and accords considerable weight to the statements she provided. Jandreau v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). On review of the evidence of record, the Board finds that a migraine headache disability is shown to be caused by in-service events. In other words, service connection for migraine headaches is warranted. The Board notes that the August 2019 VA examiner opined that there was no relation between the Veteran’s headaches and her neck disability. However, the examiner failed to provide an opinion as to whether there is a nexus between the Veteran’s headaches and service. The examiner opined that the Veteran’s headaches are not a result of her nonservice-connected neck disability. The examiner failed to provide an opinion for a direct theory of service connection. Headaches are not noted on the entrance examination. A statement dated May 1986 shows that the Veteran elected not to undergo an examination for separation. VA medical records dated between May 2015 and August 2017 show treatment for headaches. Affording the Veteran all benefit of the doubt, the Board finds that service connection for migraine headaches is warranted. The Veteran has competently and credibly indicated that she has experienced headaches during and since service. Given the diagnosis of migraine headaches by the private clinician and that this disability is an organic disease of the nervous system, this continuity of symptomatology serves as the necessary nexus between the Veteran’s current migraine headache disability and her active duty service. Service connection for migraine headaches is accordingly granted. Low back; Neck Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The RO in the August 2019 rating decision made the favorable findings of a current low back disability and current neck disability. They also found in-service treatment for low back and neck. The record shows a current diagnosis of lumbosacral strain and cervical strain. See August 2019 VA Neck Disability Benefits Questionnaire (DBQ) and August 2019 VA Back Conditions DBQ. The entrance examination shows that the Veteran was healthy upon entrance. An August 1985 service treatment record shows complaints of pain on the left side. The assessment was stated as possible kidney infection and urinary tract infection (UTI). Another August 1985 service treatment record shows left sided back pain; neck supple but tender. The assessment was stated as returning UTI, “MTAA”, and back spasm. The August 2019 VA examiner opined that the Veteran’s lumbar strain was less likely than not incurred in or caused by an in-service injury, event, or disease. The rationale was based on the examination of the Veteran, review of all the available medical evidence, and the claims file. The examiner highlighted the fact that the service treatment record showed complaint of left side back pain and that it was associated with possible kidney infection which resolved during military service. She also noted that no mention was made during the signed statement the Veteran authored when electing not to undergo a separation examination. The August 2019 VA examiner also opined that the Veteran’s cervical strain was less likely than not incurred in or caused by an in-service injury, event, or disease. The rationale was based on the examination of the Veteran, review of all the available medical evidence, and the claims file. The examiner highlighted the fact that a review of current progress notes is silent for chronic complaint of a neck disability since military discharge. She also noted that no mention was made during the signed statement the Veteran authored when electing not to undergo a separation examination. The Board finds the August 2019 VA opinions to be of high probative value. The examiner indicated review of the file, accounted for the Veteran’s contentions and provided clear, detailed rationale. Given the probative medical evidence of record, the Board finds that service connection is not warranted, as the Veteran’s low back disability and neck disability are unrelated to service. The Veteran left service in May 1986. The earliest evidence, post-separation showing any indication of low back pain or neck pain is dated August 2015, nearly three decades after separation. The Veteran is competent to report symptoms such as pain in the low back or neck. She is not competent to attribute these symptoms to an event, injury, or disease in service, as she has not demonstrated that she has the requisite medical expertise in determining its etiology and is a layperson in this regard. Lastly, the August 2019 VA medical opinions far outweigh the Veteran’s contentions, and is the only competent evidence of record regarding the nexus element. The preponderance of the evidence establishes that the Veteran does not have a current disability related to service. There is no probative evidence of record to show a connection between an event, injury, or illness in service and the Veteran’s low back disability or neck disability. As such, the claims are denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.