Citation Nr: 21061854 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-03 225 DATE: October 5, 2021 ORDER Entitlement to an initial 50 percent rating for migraine and tension type headaches is granted. Entitlement to a 100 percent rating for major depressive disorder, also claimed as anxiety, depression and stress disorder associated with endometriosis, prior to May 22, 2019, is granted. Entitlement to a rating in excess of 30 percent for endometriosis is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. Entitlement to special monthly compensation (SMC) based on statutory housebound status is granted, prior to May 22, 2019. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's migraine and tension type headaches are manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Prior to May 22, 2019, the Veteran's service-connected major depressive disorder, also claimed as anxiety, depression and stress disorder associated with endometriosis resulted in total occupational and social impairment. 3. Throughout the period on appeal, the Veteran's endometriosis did not manifest in lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. 4. Based on today's decision, the Veteran will be in receipt of a 100-percent schedular rating for major depressive disorder, claimed as anxiety, depression and stress disorder associated with endometriosis for the entire period on appeal stemming from her November 2016 claim, and will be awarded special monthly compensation beginning her date of claim. 5. Based on today's decision, for the entire period on appeal, the Veteran will be in receipt of a 100-percent rating for major depressive disorder, claimed as anxiety, depression and stress disorder associated with endometriosis and have other service-connected disabilities that are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating for migraine and tension type headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. Prior to May 22, 2019, the criteria for an increased rating of 100 percent for major depressive disorder, also claimed as anxiety, depression and stress disorder associated with endometriosis had been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434. 3. The criteria for a rating in excess of 30 percent for endometriosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.116, DC 7629. 4. For the entire period on appeal, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 5. Prior to May 22, 2019, the criteria for entitlement to special monthly compensation are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1998 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2017 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2019 and May 2021, when the issues listed above were remanded for additional development. An August 2021 supplemental statement of the case was most recently issued, and the claims are once again before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 10 percent for migraine and tension type headaches. The Veteran asserts that her migraine and tension type headaches are worse than currently rated. The Veteran's migraines are evaluated as 10 percent disabling, pursuant to DC 8100. Under DC 8100, a 10 percent disability evaluation is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. "Productive of severe economic inadaptability" can be read as having either the meaning of "producing" or "capable of producing," and nowhere in DC 8100 is "inadaptability" defined, nor can a definition be found elsewhere in Title 38 of the Code of Federal Regulations. But nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). Recently, the Court held that a schedular rating of 50 percent for migraine headaches was adequate because it contemplated all of the Veteran's symptoms, including non-headache symptoms such as dizziness, anxiety, depression, isolation, and nausea. Holmes v. Wilkie, 33 Vet. App. 67 (2020). The Veteran underwent an April 2017 VA examination. She was diagnosed with migraine including migraine variants. The Veteran reported going to the emergency room for her headaches. Symptoms associated with her headaches included nausea, vomiting, sensory changes (such as feeling pins and needles in the extremities), of 1-2 days' duration on both sides of her head. The examiner noted that the Veteran had characteristic prostrating attacks of migraine headache pain. The examiner noted that the Veteran has complicated migraine headaches with left sided numbness with visual aura. A May 2017 treatment record reflects that the Veteran was once again treated in the emergency room for her headaches. The Veteran underwent an additional VA examination in August 2017. The Veteran reported severe, throbbing, left parietal headaches. She reported nausea, vomiting, photophobia, and floaters with her migraine headaches. The Veteran reported that this occurred two times per week, lasting 1-2 days. She reported the use of Cambia and Phenergan for her headaches and laying in a dark quiet room. The Veteran additionally reported having hemiplegic migraines that occur once a month that are accompanied by dizziness, stuttering, and body numbness. The examiner noted that the Veteran had characteristic prostrating attacks of migraine pain once every month and the prostrating and prolonged attacks are productive of severe economic inadaptability. The Veteran has additionally submitted a May 2019 Headaches (Including Migraine Headaches) Disability Benefits Questionnaire (DBQ). The Veteran reported prostrating headaches that occur 2-3 times per week. She reported that when they occur, they are 8 out of 10 on a pain scale and she has to go lie down in a dark quiet room for relief. The Veteran reported that these headaches can last between 12 hours to 36 hours until she is able to function again. The Veteran reported the use of Cambia and Phenergan medication. Symptoms were reported to include nausea, sensitivity to light, sensitivity to sound, changes in vision, sensory changes, and that half of her body goes numb, and she has disturbed concentration. The examiner noted that the Veteran had characteristic prostrating attacks that occur more frequently than once a month. The examiner noted that it was her opinion that the Veteran's migraines would impact her ability to work. In an attached opinion, the private physician considered the evidence of record. She stated that based on an interview with the Veteran and review of the Veteran's claims file it is her opinion that the Veteran more likely than not is unable to maintain substantially gainful employment due to her headaches. The Board has also considered the Veteran's lay statements regarding the impact her migraine headaches. The Board finds that the evidence of record supports a 50 percent rating for the Veteran's service-connected migraine and tension type headaches for the entire period on appeal. While the initial April 2017 VA headaches examination did not identify the Veteran's headaches as productive of severe economic inadaptability, the Veteran's culmination of migraine headache symptomatology shows that her condition has a direct impact on her employment, and her lay statements indicate a severe impact on her economic wellbeing and day to day life. Additionally, the Veteran's medical treatment records show extensive treatment and complaints of migraine headaches. In light of the foregoing, the Board finds that because of the severity and frequency of the Veteran's migraine headaches, as well as the effects these attacks have on the Veteran's ability to function, a 50 percent rating for her service-connected migraine and tension type headaches is warranted. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the evidence is in equipoise as to whether the Veteran's migraine and tension type headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability and that a 50 percent disability rating is warranted. 2. Entitlement to a rating in excess of 70 percent for major depressive disorder, also claimed as anxiety, depression and stress disorder associated with endometriosis, prior to May 22, 2019. The Veteran's major depressive disorder has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. In an August 2021 rating decision, the RO increased the Veteran's rating to 100 percent, effective May 22, 2019. Based on a review of the record, the Board finds that a 100 percent rating for her major depressive disorder is warranted for the entirety of the appeal period prior to May 22, 2019. Major depressive disorder is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Under these criteria, a 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. Id. The maximum rating of 100 percent 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. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited. Rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Following a review of the evidence throughout the period on appeal, prior to May 22, 2019, the Board finds that the Veteran was entitled to a 100 percent disability rating for her major depressive disorder. In this regard, the Board has considered a February 2017 VA examination report. The Veteran reported that since her last examination, her depression had worsened. She reported daily suicidal ideation without plan and intent. The Veteran reported that she brushes her teeth daily and sometimes puts deodorant on, but her bathing is less consistent. She reported that when she is not depressed, she bathes every other day, but when her depression is worse she often goes five days without bathing. Symptoms were reported to include depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Significantly, the notation that she had intermittent inability to perform activities of daily living is consistent with a 100 percent disability rating. The Veteran was additionally examined in August 2017. In the August 2017 VA examination report, symptoms including depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances were noted. A mental status examination reflected that she was fully oriented, had fair insight and impulse control and did not have suicidal or homicidal ideation. The Veteran has additionally submitted a May 2019 Mental Disorder Disability Benefits Questionnaire. This examination was used by the RO to grant an increased rating to 100 percent, effective May 22, 2019, the date of the examination. The private treating examiner noted that the Veteran's mental disability resulted in total occupational and social impairment. It was noted that the Veteran's symptoms included depressed mood, anxiety, panic attacks, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, neglect of personal appearance and hygiene and intermittent inability to perform activities of daily living. In a supporting addendum, the private examiner discussed the Veteran's treatment records as well as medical journal articles. Significantly, the examiner noted that the Veteran's symptoms of her mental disability had been present in their current severity since the date of her disability claim in November 2016. In finding that a 100 percent disability rating is warranted prior to May 22, 2019, the Board places great weight on the February 2017 VA examination and the May 2019 DBQ assessment. The Board acknowledges that the results of the August 2017 VA examination and the symptoms described in some of the mental health treatment notes and lay statements of record do not indicate that the Veteran experiences all the symptoms associated with a 100 percent disability rating for a major depressive disorder for the period specified above. However, as noted above, the Court has held that the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan, 16 Vet. App. 436 (2002). Based on the foregoing discussion, the Board finds that Veteran's major depressive disorder more nearly approximated the rating criteria for 100 percent rating for the entire period on appeal, prior to May 22, 2019. 3. Entitlement to a rating in excess of 30 percent for endometriosis. The rating for endometriosis is governed by 38 C.F.R. § 4.116, DC 7629, which provides for a 10 percent rating for endometriosis when there is pelvic pain or heavy or irregular bleeding requiring continuous treatment for control. An evaluation of 30 percent is warranted under DC 7629 with pelvic pain, or heavy or irregular bleeding not controlled by treatment. An evaluation of 50 percent is warranted under DC 7629 with lesions involving the bowel or bladder confirmed by laparoscopy, pelvic pain or heavy or irregular bleeding not controlled by treatment, and bowel or bladder symptoms. The Veteran is rated at 30 percent throughout the period on appeal; following a review of the evidence the Board finds that an increased rating is not warranted. The Veteran underwent an examination in March 2017. She was diagnosed with endometriosis. It was noted that she had undergone a hysterectomy with one oophorectomy in 2013; the Board notes that the Veteran is separately rated at 30 percent for her hysterectomy which is not before the Board at this time. At the March 2017 examination the Veteran reported a lot of abdominal cramping with back pain. She reported the use of Motrin to help with the pain. The examiner noted that she had mild constant pain and moderate intermittent pain. The examiner noted that the Veteran did not have urinary incontinence or leakage. It was also noted that there was no rectovaginal fistula or urethrovaginal fistula. The only signs or symptoms associated with her endometriosis were noted to be pelvic pain. It was noted that her symptoms did not require continuous treatment. The Veteran attended a January 2018 VA examination. She was diagnosed with endometriosis. She reported that current symptoms included intermittent sharp pain twice a month with abdominal bloating. Symptoms were described as moderate intermittent pain. The examiner noted that the Veteran had urinary incontinence/leakage, but it was not due to a gynecologic condition. The only signs or symptoms due to endometriosis were noted to be pelvic pain and the examiner stated that her symptoms did not require continuous treatment. Based on the evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 30 percent for her service connected endometriosis. In particular, the Board acknowledges the Veteran's complaints of abdominal pain and bloating. However, the evidence does not reflect lesions involving bowel or bladder confirmed by laparoscopy and bowel or bladder symptoms related to her endometriosis. At most the Veteran was noted as having urinary incontinence/leakage not associated with her endometriosis. See January 2018 VA examination. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of her endometriosis. In this regard, the Veteran is competent to report on factual matters of which she had firsthand knowledge, e.g., abdominal pain. The Veteran has provided lay evidence through written statements throughout the course of her appeal with respect to the presence of pain and the severity of such during her VA examinations. She is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Board has considered the Veteran's reports with respect to pain in evaluating her assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. As a preponderance of the evidence is against the award of an increased rating, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The claim for an increased ratting in excess of 30 percent for endometriosis is denied. TDIU 4. Entitlement to a TDIU. As explained above, today's order will grant a 100-percent rating for service-connected major depressive disorder, for the entire period on appeal. Receipt of a 100-percent schedular rating for a service-connected disability can render moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See Green v. West, 11 Vet. App. 472, 476 (1998). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley v. Peake, 22 Vet. App. 280 (2008). By a rating decision of August 2021, the Veteran has already been awarded special monthly compensation from May 22, 2019. The stated reasoning was that the Veteran met the SMC criteria under 38 C.F.R. § 3.350(i) from May 22, 2019, the date that the Veteran was determined by the RO to be entitled to a 100 percent schedular rating for her major depressive disorder and had additional, service- connected disabilities independently ratable at 60 percent or more. As a result of today's decision, the Veteran will be granted entitlement to SMC for the entire period on appeal. The facts of this case are distinguishable from those discussed in Bradley. Because the Veteran, as a result of today's order, will be in receipt of a 100-percent schedular rating for major depressive disorder for the entire period on appeal and will also be awarded SMC for the entire period on appeal, the Veteran's TDIU claim becomes moot. Accordingly, it will be dismissed. Special Monthly Compensation 5. Entitlement to SMC. In general, special monthly compensation benefits by reason of being housebound are payable if a veteran has a single permanent disability rated 100 percent disabling and has either (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). The provision relating to "100 percent plus 60 percent" is commonly referred to as "statutory housebound." A TDIU rating based on a single disability may satisfy the statutory requirement of a total rating under 38 C.F.R. § 3.350(i). See Bradley v. Peake, 22 Vet. App. 280 (2008). The order in which disabilities are service connected is not relevant to VA's determination of a claimant's eligibility for special monthly compensation under section 1114(s). See Buie v. Shinseki, 24 Vet. App. 242 (2010). As a result of the ratings established by today's decision, the Veteran will be in receipt of a 100-percent rating for major depressive disorder for the entire period on appeal. For this period, under the Combined Ratings Table, 38 C.F.R. § 4.25, she also has other service-connected disabilities that are independently ratable at 60 percent or more and involve different anatomical segments or bodily systems. Accordingly, entitlement to SMC is warranted for the entire period on appeal on the basis of a 100 percent rating for service-connected major depressive disorder and other ratings that involve different anatomical segments or bodily systems and combine to 60 percent or more. 38 C.F.R. § 3.350(i). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.