Citation Nr: A20007344 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190719-15736 DATE: April 30, 2020 ORDER Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) and major depressive disorder for the period from April 24, 2018, to June 20, 2019, is denied. Entitlement to a compensable evaluation for migraines for the period from April 24, 2018, to June 20, 2019, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD and major depressive disorder have not been productive of total occupational and social impairment. 2. Throughout the appeal period, the Veteran’s headaches were not productive of characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for PTSD and major depressive disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9411. 2. The criteria for a compensable evaluation for migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2006 to September 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) under its modernized review system. See Veterans Appeals Improvement and Modernization Act (AMA), Pub. L. No. 115-55, 131 Stat. 1105 (2017); VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019) with applicability provisions under 38 C.F.R. §§ 3.2400 and 19.2. The Veteran filed a claim for an increased evaluation for PTSD with major depressive disorder and for migraine headaches on April 24, 2019. The agency of original jurisdiction (AOJ) denied the claims in a June 2019 rating decision with consideration of the evidence received between April 24, 2018 (one year prior to the April 2019 claim) and the date of the rating decision. The Veteran was notified of the decision on June 20, 2019; therefore, the appeal period closed on that date. He timely appealed the June 2019 rating decision to the Board in a July 2019 and August 2019 VA Form 10182 and requested direct review of the evidence considered by the AOJ. Evidence was added to the claims file during a period of time when new evidence was not allowed. Therefore, the Board may not consider this evidence. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). PTSD and Major Depressive Disorder The Veteran’s PTSD and major depressive disorder are currently assigned a 70 percent evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that diagnostic code, a 70 percent evaluation is warranted when the psychiatric disorder results in 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when the psychiatric disorder results in 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; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected PTSD and major depressive disorder for the period from April 24, 2018, to June 20, 2019. The evidence of record does not show that the Veteran has 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. VA treatment records dated in June 2018 document that the Veteran had a depressed affect, but that he denied having suicidal ideation and depression. His mood was normal and stable, his recent and remote memory were intact, and his appetite was good. An alcohol screening revealed that the Veteran had not consumed a drink containing alcohol within the last year. VA treatment records dated in July 2018 note that the Veteran was guarded and had had several bad days per week, which led him to isolate himself. He reported feeling like nothing could be done to help him, and he had a depressed mood and flat affect. However, his speech was normal, his thoughts were logical, and he denied having suicidal and homicidal ideations. VA treatment records dated in August 2018 show the Veteran to have been an attentive and active participant in group therapy. His mood was generally stable, and he denied having suicidal and homicidal ideations. VA treatment records dated in September 2018 revealed that the Veteran was alert, pleasant, and oriented to person, place, and time. He had appropriate mood and attention and, normal cognition and memory, but he reported experiencing bad sleep. VA treatment records dated in October 2018 indicate that the Veteran had periods of depression, had isolated himself for a week, and did not attend to work or his girlfriend. He also reported insomnia and that he was getting three to four hours of sleep per night. He was appropriately dressed and had an euthymic mood, cooperative attitude, normal speech, and logical thought processes. He denied experiencing hallucinations, suicidal and homicidal ideations, and psychosis. The Veteran reported that he was “even” and engaged in activities to keep himself calm and “even.” He noted that he isolates himself and does not eat when he is depressed VA mental health treatment notes from Dr. M.D. (initials used to protect privacy) dated in January 2019 document a moderately to severely depressed mood and an affect of normal range consistent with content. The Veteran reported that there had been one time within the last month during which he had wished he would not wake up, but he denied having suicidal and homicidal ideations. He also reported that he did not get intrusive memories every day, but that he could be triggered by people asking about his experiences, being touched, and being around people who talked fast or acted anxious. He further indicated that he had nightmares every night and crying spells four times per week. He noted that he was fairly easily startled and experienced hypervigilance, paranoia, irritability, and anger. Additionally, the Veteran indicated that he experienced flashbacks that may not happen for a month, but then may happen every day when they do occur. He also had decreased energy, motivation, concentration, sleep, and appetite. The examiner noted that the Veteran’s extreme lack of appetite was an urgent focus. The Veteran was appropriately dressed, and he had adequate personal hygiene and was oriented to person, time, and place. He also had clear speech with normal rate, rhythm, and tone, as well as fair insight, good judgment, and logical thought. He did not report experiencing hallucinations or delusions, and he did not have mood swings suggesting mania or hypomania. VA emergency department treatment records dated in January 2019 subsequently document that the Veteran denied wishing he were dead or could go to sleep and not wake up within the previous two weeks. VA emergency department treatment record dated later month also revealed that the Veteran denied having behavioral changes, suicidal thoughts, anxiety, or depression. VA treatment records dated in February 2019 reveal that, over the past two weeks, the Veteran had not been bothered by thoughts that he would be better off dead or hurting himself in some way. VA treatment records dated in March 2019 note that the Veteran had a depressed affect, but he denied having suicidal ideation and depression. His recent and remote memory were intact. In an April 2019 statement, the Veteran described his symptoms, including sadness, loneliness, frustration, lack of energy, a disinterest in previously pleasurable activities, an inability to concentrate, and a reliance on alcohol to manage stress and depression. The Veteran also noted that he experienced panic attacks, crying spells, and suicidal thoughts. VA mental health treatment records from Dr. M.D. dated in May 2019 indicate a mildly to moderately depressed mood and constricted affect consistent with content. The Veteran reported that the severity of his PTSD and depression was about the same as when he was last seen by Dr. M.D. in January 2019. He noted that his nightmares had decreased from the use of Seroquel that was prescribed at his January 2019 visit, but that he had stopped taking it. The Veteran was appropriately groomed and dressed, had adequate personal hygiene, and was nourished. He was oriented to person, place, time, and circumstance, had clear speech with a normal rate, rhythm, and tone, had logical and goal-directed thought, had fair insight and good judgment, and denied having suicidal or homicidal ideations, unusual thoughts, hallucinations, and delusions. Dr. M.D. diagnosed the Veteran with major depression, recurrent, moderate, in addition to PTSD. A May 2019 VA examiner noted that the Veteran’s symptoms included a depressed mood, anxiety, panic attacks more than once per week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining work and social relationships, impaired impulse control, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner indicated that he was on time and appropriately groomed and oriented in all spheres, had normal and goal-direct speech (although his voice was quiet with little spontaneous speech), and did not have concentration difficulties, hallucinations, delusions, or suicidal or homicidal ideations. The Veteran noted that he uses alcohol to self-medicate, but he reported that it has not caused problems. The examiner diagnosed the Veteran with PTSD and major depression, recurrent, moderate and found that the major depressive symptoms appear secondary to PTSD, but that they warranted a separate diagnosis based on severity and functional impact. She found that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Such a finding is commensurate with a 70 percent evaluation. To the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation may be shown or argued, the Board finds that the Veteran’s PTSD was not productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). With respect to occupational impairment, the record shows that the Veteran received a bachelor’s degree, has worked in real estate since 2015, and likes his job. See January 2019 and March 2019 VA treatment records; May 2019 VA examination report. He has reported that he minimally interacts with co-workers and snaps on them when they come up behind him. He also indicated that he does okay when at work, but that his mental health symptoms cause him to miss work for days or weeks at a time. The record indicates that, as of May 2019, he was still employed as a realtor. Thus, while the Veteran may have some occupational impairment, it cannot be said that he has total occupational impairment. With regard to social impairment, the Veteran has reported that he ended a six- to seven-year relationship because he is hard to deal with when he is in dark places. However, he has also indicated that he maintains daily phone contact with his daughter and sees her during the holidays and the summer. He also maintains regular contact with his immediate family and childhood friends and identifies them as his support system. See May 2019 PTSD VA examination report. Thus, the evidence does not show that he has total social impairment After considering the evidence of record, the Board finds that the Veteran’s symptoms more closely approximate the criteria for an evaluation of 70 percent for the appeal period. Overall, the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria during the appeal period, nor do the Veteran’s symptoms cause total occupational and social impairment. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Migraines The Veteran is currently assigned a noncompensable evaluation for migraine headaches, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable evaluation is assigned for less frequent attacks of migraine headaches, a 10 percent evaluation is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months, and a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. The maximum 50 percent rating under Diagnostic Code 8100 is warranted for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. The Rating Schedule does not define “prostrating.” However, “prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See e.g. Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013). Additionally, the terms “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. The Court has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the migraines must be, at a minimum, capable of producing “severe” economic inadaptability. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for his service-connected migraine headaches for the period from April 24, 2018, to June 20, 2019. As set forth above, the applicable rating criteria link ratings for headaches to two elements: severity and frequency. The record documents that the Veteran experiences migraine headaches once every 25 to 30 days and other headaches daily. See September 2018 and March 2019 VA treatment records. His head pain typically lasts for more than two days, and his symptoms include head pain, changes in vision, nausea, dizziness, weakness, and sensitivity to light and sound. See September 2018 and January 2019 VA treatment records; April 2019 statement; May 2019 VA examination report. The May 2019 VA examiner noted that the Veteran has missed two to four weeks of work over the past 12 months related to his headaches. The Veteran also told the May 2019 VA examiner that sitting in front of a computer triggers his headaches, which prevents him from submitting paperwork on time. Therefore, he often relies on co-workers to perform the computer portion of his job. Significantly, however, the VA examiner found that the Veteran does not have characteristic prostrating attacks. Overall, the evidence does not show that the Veteran has characteristic prostrating attacks that occur at least once every two months. Although the Veteran reported experiencing weakness with headaches in an April 2019 statement, during the May 2019 VA headache examination, it was found that he does not have characteristic prostrating attacks. Moreover, in the April 2019 statement, the Veteran also reported feeling weakness when he was not experiencing a headache. In addition, other VA treatment records do not document any characteristic prostrating attacks, and in September 208, he told a neurologist that his headaches only last one hour. Thus, the criteria for a 10 percent evaluation have not been met, and the Board finds that the weight of the evidence is against a compensable evaluation for migraine headaches. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied in this regard. Gilbert, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Williams, 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.