Citation Nr: 21001925 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-16 405 DATE: January 12, 2021 ORDER Entitlement to a separate rating for unspecified depressive disorder, adjustment disorder, and/or alcohol use is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDING OF FACT When considering all the Veteran’s acquired psychiatric disabilities, at most, they cause occupational and social impairment with deficiencies in most areas, which is commensurate with the 70 percent rating he already has for his mental impairment, irrespective of specific diagnoses or how they are characterized. CONCLUSION OF LAW The criteria are not met for a separate disability rating for depressive disorder, adjustment disorder, and/or alcohol abuse. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes 9201-9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1986 to February 1993, including in Southwest Asia from August 1990 to March 1991. This claim for service connection and a separate rating for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD) with history of depressive disorder and alcohol abuse stems from a September 2019 Board decision in which the Board characterized the Veteran’s acquired psychiatric disability as “PTSD with history of depressive disorder, adjustment disorder, and alcohol abuse”. The Board denied an initial rating higher than 70 percent for this collective mental disorder. The Veteran appealed the Board’s decision to the higher U. S. Court of Appeals for Veterans Claims (CAVC/Court). In a June 2020 Order, the CAVC vacated the Board’s decision – but only to the extent it did not consider entitlement to a separate rating for an unspecified depressive disorder. The CAVC remanded this claim back to the Board pursuant to agreement in a Joint Motion for Partial Remand (JMPR) for consideration of this ancillary issue. 1. Entitlement to a separate rating for an unspecified depressive disorder The Veteran’s service-connected PTSD with “history of depressive disorder and alcohol abuse” (as described on the rating code sheet) has been rated as 70-percent disabling effectively since February 10, 2009. Historically, in November 2009, the Veteran received a diagnosis of unspecified depressive disorder, and in May 2017 a VA examiner reaffirmed the diagnosis of depressive disorder and characterized it as distinct from the Veteran’s PTSD – that is, with each condition having distinguishing symptomatology. On appeal, in its June 2020 Order granting the JMPR, the Veterans Court (CAVC) cited the Board’s failure to consequently consider whether the Veteran’s February 2009 claim (which specifically identified service connection for PTSD as the benefit being sought), also encompassed a separate claim for the depressive disorder.   Since the Court’s June 2020 Order granting the JMPR, the Veteran underwent an examination in August 2020. The RO considered the results of that examination in a September 2020 rating decision that again denied a rating higher than 70 percent for his mental impairment. For rating purposes, when it is not possible to separate the effects of a service-connected disability from a nonservice-connected disability, this reasonable doubt must be resolved in the Veteran’s favor according to 38 C.F.R. §§ 3.102, 4.3 and the signs and symptoms in question attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). However, while separate disability ratings may be assigned for distinct disabilities resulting from the same injury, this is true only so long as the symptoms for one condition are not "duplicative of or overlapping with the symptom[s]" of the other condition, else, this violates VA’s anti-pyramiding regulation – 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the Court held that a claim for an acquired psychiatric disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Here, though, crucially, the criteria for evaluating an acquired psychiatric disability, so irrespective of specific diagnosis, are all found in the General Rating Formula for Mental Disorders and the various diagnostic codes (DCs) of 38 C.F.R. § 4.130. This General Rating Formula notably includes PTSD (DC 9411), major depressive disorder (DC 9434), unspecified depressive disorder (DC 9435), and chronic adjustment disorder (DC 9440); only eating disorders are excluded from this General Rating Formula. According to this General Rating Formula for Mental Disorders, a 70 percent rating (which, as already mentioned, has been the Veteran’s rating for the entirety of his claim) 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); and inability to establish and maintain effective relationships. A higher 100 percent rating requires total occupational and social impairment. A November 2009 VA clinical record affirms the Veteran has diagnoses of chronic PTSD, depressive disorder not otherwise specified (NOS), and alcohol abuse. The examiner determined, however, that the Veteran had an unremarkable mental status evaluation with the exception of a slight decrease in his abstract thinking. Otherwise, he demonstrated excellent reality, accuracy, and orientation, immediate- and short-term memory, attention and concentration, calculation ability, fund of information, and the capacity to perceive the similarity/difference between two concepts, and social judgment. He was noted to have several friends with whom he plays cards and/or watches sports approximately five times each week, has relationship with a female acquaintance whom he is in contact every other day, and provides some caretaking for his mother who had suffered strokes over the past year. He denied suicidal and homicidal ideation. His thought processes were logical, coherent, and organized. There was no evidence of florid psychosis, including delusions, hallucinations, or other bizarre thinking. He was casually dressed albeit his sweatpants were noted to be slightly soiled. The report does not indicate that the Veteran’s symptoms, if separated and attributed to individual diagnoses, would allow for differentiating occupational and social impairment, and even if so, would allow for separate ratings under the General Rating Formula for Mental Disorders which would exceed the current 70 percent rating. A September 2010 VA examination report reflects that the Veteran does not meet the criteria for PTSD or depressive disorder (the results of testing suggested malingering) and is not impaired by a mental condition. An October 2016 Disability Benefits Questionnaire (DBQ) reflects that the Veteran’s symptoms meet the criteria for adjustment disorder, but they are better accounted for under PTSD. Since the Veteran met the criteria for PTSD, which is a stress-related disorder, he was not diagnosed with Adjustment Disorder per the Diagnostic and Statistical Manual of Mental Disorders (DSM). A May 2017 DBQ examiner found that it is possible to differentiate which symptoms are attributed to each of the Veteran’s mental health diagnoses. The examiner found that the Veteran’s depression caused feelings of sadness, emptiness or unhappiness, caused a loss of interest or pleasure in normal activities, caused sleep disorders (including insomnia and sleeping too much), caused fatigue or loss of energy, and caused trouble thinking, concentration, making decisions, and remembering things. The examiner found that the Veteran’s PTSD caused intrusive memories, distressing dreams, psychological distress, physiological reactions, avoidance, diminished interest, feeling of detachment, irritability, hypervigilance, problems with concentration, and inability to experience positive emotions. The examiner also found that there “will be some overlap between the PTSD and the Depression (loss of interest, sleep disturbance, concentration). The Depression is likely secondary to and caused by his PTSD.” Importantly, the examiner found that the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was impairment with deficiencies in most areas, which equates with a 70 percent (his current) rating. The examiner found that it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder due to the overlap of symptoms. Thus, when considering the holdings in Mittleider, Esteban, and Clemons, a separate rating is not warranted. There is no competent and credible evidence showing the Veteran has occupational or social impairment separate and apart from what is contemplated by his existing 70 percent rating for his PTSD with history of depressive disorder and alcohol abuse. In other words, this includes when additionally considering any occupational and social impairment specifically owing to his unspecified depressive disorder or adjustment disorder. An August 2018 VA examination found that there was some possible evidence of a current alcohol use disorder that is likely secondary to the PTSD, though there was insufficient evidence to make a definitive diagnosis of this at that time (though this should be considered a “rule-out”). An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on VA unless it is patently inconsistent with the facts and the requirements of laws administered by VA. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). There is just a very limited exception to this general rule, when the converse occurs, that is, when a disability instead causes a Veteran to abuse drugs or alcohol – such as to relieve, mask or alleviate the symptoms associated with a disability, often a mental disorder (i.e., a “coping mechanism”). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But, in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, the examiner ultimately concluded the Veteran only had one diagnosed mental disorder, PTSD, but his service-connected disability nonetheless includes not just his PTSD but also his history of depressive disorder and alcohol abuse. So, VA already is compensating him for the extent his alcohol abuse is attributable to (i.e., meaning secondary to) his mental impairment. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995). The examiner found that the level of occupational and social impairment with regards to the PTSD was best summarized as reduced reliability and productivity, which equates with a 50 percent rating. This 50 percent rating is less than the current 70 percent rating; however, the Board will not disturb it. In any event, this report is against finding that a separate rating is warranted for any diagnosis other than the current PTSD with history of depressive disorder and alcohol abuse. An August 2020 DBQ shows the Veteran has three diagnoses: PTSD, unspecified depressive disorder, and mild alcohol use disorder. The examiner surmised the symptoms attributed to each disorder could be identified as follows: PTSD include[s] symptoms such as: nightmares; intrusive memories/ thoughts, flashbacks, avoidance, hypervigilance, psychological distress, etc. Unspecified Depressive Disorder include[s]: depressed mood most of the day nearly every day, markedly diminished interest or pleasure in all or almost all activities, insomnia or hypersomnia nearly every day, fatigue or loss of energy nearly every day, feelings of worthlessness, indecisiveness, and recurrent suicidal thoughts without a specific plan. Alcohol Use Disorder – problematic pattern of alcohol use leading to clinically significant impairment or distress. There is a strong clinical association between these diagnoses. Depression is one of the most commonly co-occurring diagnoses in people with [PTSD] as it is a common response after a traumatic or stressful event. According to the DSM-5, individuals with PTSD are 80% more likely to meet criteria for another mental disorder, such as depression. Alcohol use is another commonly co-occurring diagnoses in people with [PTSD]. Having PTSD and alcohol use problems at the same time can make the symptoms of each worse. As for the extent of the Veteran’s occupational and social impairment, the examiner found that the Veteran’s mental health symptoms were best summarized as causing deficiencies in most areas, which correlates to a 70 percent rating, i.e., to the rating he already has and, in fact, has had effective since February 2009. The 2020 examiner found that it is not possible to differentiate the level of impairment without resorting to mere speculation because the diagnoses are inextricably connected. Thus, the 70 percent rating adequately compensates the Veteran for his mental health disabilities, even when considering them or, more importantly, their consequent effects in combination. The Board finds that, at no time relevant to this appeal, is the Veteran entitled to a separate rating for a disability other than his PTSD with history of depressive disorder and alcohol abuse. As already alluded to, the Court noted that a May 2017 VA examiner determined the Veteran had a diagnosis of depressive disorder and characterized it as distinct from his PTSD – with each condition having distinguishing symptomatology. However, and importantly, this same examiner found that the Veteran’s level of occupational and social impairment with regards to all mental diagnoses was, at most, impairment with deficiencies in most areas, which equates with a 70 percent rating (so his current). The examiner additionally explained that it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder due to the overlap of symptoms (they are inextricably connected). Thus, while the disorders are distinct in a strict sense, the occupational and social impairment attributable to them cannot be differentiated, distinguished, or parceled out – especially since, to reiterate, the General Rating Formula for Mental Disorders encompasses all these diagnosed disorders and rates them in the same manner (considering the same symptoms), not instead differently. Moreover, at the time of the 2018 examination, the Veteran only had one definitive diagnosis and its symptoms caused no more than a level of severity equating with a 50 percent rating, which is less than the assigned rating of 70 percent. Finally, the 2020 DBQ notes three diagnoses but finds that all three, when taken together, cause at most impairment equating to a 70 percent rating. Again, the examiner found that it was not possible to differentiate the level of impairment since the disabilities are inextricably connected. The Board, therefore, finds that the existing 70 percent rating for the Veteran’s PTSD with a “history” of depressive disorder and alcohol use encompasses all his acquired psychiatric symptoms, irrespective of how they are diagnosed or delineated between diagnoses. As he was diagnosed with unspecified depressive disorder and alcohol use during the rating period on appeal, the Board acknowledges that the characterization of those disabilities as being by “history” is not entirely accurate; nonetheless, it does not change his rating or allow for a separate rating. For these reasons and bases, separate evaluations are not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The remaining claim of entitlement to service connection for a headache disability was previously before the Board in March 2019 when the claim was reopened but then denied on its underlying merits. In response, the Veteran appealed the Board’s decision to the higher Court/CAVC. In a June 2020 Memorandum Decision, the Court vacated the Board’s denial of this claim and determined the Board had failed to provide adequate reasons and bases as to whether service connection was warranted on a presumptive basis under 38 C.F.R. § 3.317. See also 38 U.S.C. § 1117. 2. Entitlement to service connection for a headache disability is remanded The Veteran is a Persian Gulf War veteran who asserts that he has signs and symptoms of a qualifying chronic disability according to 38 C.F.R. § 3.317(b). He is competent to report a headache; however, he has not been shown to be competent to relate a headache disability to his service, including to his service in Southwest Asia during the Persian Gulf War. Moreover, the clinical records note different possible etiologies for his headaches. The Veteran’s service treatment records (STRs) show he was treated twice for headaches while in service (in March 1990 and in May 1992). The March 1990 STR shows he reported a headache of two weeks in duration involving pain on the right side-inside; the impression was cephalgia. Notably, that was several months before his service in Southwest Asia since that service did not begin until later, in August 1990, but that headache was during his service, nonetheless. The May 1992 STR shows the Veteran had been having sharp eye pain for which ophthalmic solution was not helping. He reported that he had a headache occurring after using the drops, which was present on the right side. The Veteran’s later December 1992 Report of Medical History for separation purposes (expiration of term of service (ETS)) reflects that he denied having had frequent or severe headaches. The Veteran separated from service in December 1993. There are no clinical record noting headaches for the next 15 years. A July 2008 VA clinical (Persian Gulf War) record reflects that he presented with no complaints, and that he specifically denied headaches. However, in August 2008, it was noted that he takes Tylenol for headaches and had a past medical history of a headache. In his February 2009 statement in support of claim, he asserted that he had headaches three times a week; however, he did not indicate when they began or a relationship to his service. A June 2009 VA clinical record shows he had right ear pain and a lump in the preauricular region for three days; he admitted to a mild headache in the right temporal region. A February 2012 private record (U.S. Healthworks Medical Group) reflects a chief complaint of headaches. It was note that the Veteran reports that he “has a three-month history of experiencing headaches. The [Veteran] relates that he experiences sharp pains on the right brow area two to three times a month”. The Board notes that this three-month history is indicative that he had not had chronic headaches since service. A March 2012 VA record reflects that the Veteran called and stated that he was admitted to Orlando Regional Medical Center for head trauma and broken ribs secondary to an assault; he reported having been discharged on March 22, 2012. Records from his hospitalization and claimed injury are not associated with the claims file but may provide pertinent information, to include whether the Veteran had chronic headaches prior to the injury, the location of those headaches (e.g., right-side, left-side, frontal), and the location of the injury. Thus, VA should attempt to obtain them. An April 2012 VA clinical record reflects that the Veteran was seen as follow-up after the March 2012 hospital discharge, and that he was “presumed to be assaulted and was admitted with closed head injury”. A May 2012 VA clinical record reflects that the Veteran had a past medical history of a “headache -assaulted w/head injury w/[hospitalization] (Orlando Regional 3/2012”. A November 2012 VA examination report reflects that the Veteran reported that he gets headaches “every so often” and that the pain is located only on the left side of the head. The examiner found it less likely as not that the Veteran’s headaches were due to the in-service headaches in 1990 or 1992. However, the examiner did not discuss whether a current headache disability could be related to the Veteran’s service in Southwest Asia. 2013 VA clinical records note that the Veteran complained of intermittent headaches (January 2013); it was advised that his blood pressure be checked, that the Veteran reported remarkable headaches once or twice a week (September 2013), and that the Veteran reported that sometimes he wakes up with headaches and requested a sleep study (October 2013). According to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, a qualifying chronic disability is a chronic disability that results from either an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) such as chronic fatigue syndrome, fibromyalgia, or a functional gastrointestinal disorder. Headaches can be a sign or symptom of an undiagnosed illness or a MUCMI. Given the Court’s Memorandum Decision, the Board finds that it would be useful to obtain a clinical opinion concerning the likelihood the Veteran has an undiagnosed illness or a MUCMI versus a headache disability of some other sort versus none at all that could be considered chronic and attributable to his service. Accordingly, this claim is REMANDED for the following action: 1. Ask the Veteran to complete an authorization form (VA Form 21-4142) so VA may obtain the records of his treatment and diagnosis at Orlando Regional Medical Center from approximately March 17, 2012 to March 23, 2012. If he provides this necessary authorization, obtain these records. Document all requests for these records as well as all responses in the claims file and appropriately notify him and his attorney if unable to obtain these records. 2. Also obtain updated VA treatment records for the Veteran. 3. Thereafter, obtain a clinical opinion as to whether it is as likely as not the Veteran has a headache disability that is a manifestation of a medically unexplained chronic multi-system illness (MUCMI) (i.e., either the etiology or pathophysiology of the illness is inconclusive). The commenting clinician must consider the pertinent evidence of record – including: a.) a March 1990 STR (so prior to the Veteran’s service during the Persian Gulf War) noting a right-sided headache for two weeks in duration; b.) a May 1992 STR noting right-sided headache pain after using eye drops; c.) a December 1992 report of Medical History in which the Veteran denied having had frequent or severe headaches; d.) the July 2008 VA clinical (Persian Gulf War) record in which the Veteran denied headaches; e.) the August 2008 VA clinical record and February 2009 statement of headaches; f.) the June 2009 VA clinical record of a mild right headache and right ear pain; g.) a February 2012 private record (U.S. Healthworks Medical Group) noting a three-month history of headaches on the right brow area; h.) 2012 records noting a headache and claimed head injury with hospitalization after an assault; i.) a November 2012 VA examination report; j.) 2013 VA clinical records noting the Veteran complained of intermittent headaches (January 2013) and advising that his blood pressure be checked; k.) the October 2013 VA clinical record noting the Veteran reported sometimes waking up with headaches and consequently requesting a sleep study.   When responding, regardless of whether favorably or instead unfavorably, it is essential the examiner provide rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. If adequate rationale cannot be provided without actual examination of the Veteran, schedule him for an examination, but this is left to the reviewing clinician’s discretion. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.