Citation Nr: 21067720 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-39 277 DATE: November 5, 2021 ORDER Entitlement to an increased rating of 50 percent for migraine headaches is granted. Entitlement to an initial increased rating in excess of 50 percent disabling for posttraumatic stress disorder is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran experienced migraines with characteristic prostrating attacks manifesting in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran's mental health disability, posttraumatic stress disorder, is manifested by occupational and social impairment with reduced reliability and productivity. It is not manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSIONS OF LAW. 1. The criteria for a disability rating of 50 percent for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 50 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1993 to December 1994, and from February 2007 to February 2015. These matters arise from an April 2015 Department of Veteran's Affairs (VA) Regional Office rating decision granting service connection for a mental health condition at 50 percent disabling and for migraine headaches at 30 percent disabling. The Veteran timely appealed the initial ratings for these two conditions. During the pendency of the appeal, a second rating decision for the Veteran's mental health condition was issued in November 2020, under VA's modernized review system under the Appeals Modernization Act (known by the Board as AMA). 38 C.F.R. § 19.2 (2019). This rating decision updated the diagnosis and diagnostic code assigned but maintained a 50 percent rating. The Board notes that the Veteran's appeal for an increased rating under VA's legacy system was already pending and had been certified to the Board at the time of the November 2020 AMA rating decision. Therefore, the issue remains on appeal in the legacy system. A hearing was held before the undersigned Veteran's Law Judge on July 16, 2021. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to a rating of 50 percent for migraine headaches The Veteran contends that her symptoms are more severe than initial contemplated by her 2016 VA examination for migraines. She seeks a 50 percent rating for her headaches disability. Migraine headaches are rated under DC 8100. DC 8100 identifies that a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran was afforded a VA examination for her migraine headaches in December 2016. The Veteran was rated at a 30 percent rating based on this examination. Review of this examination and the Veteran's July 2021 testimony finds that the Veteran's migraines more closely approximate the criteria for an initial 50 percent rating. During her July 2021 testimony, the Veteran and her representative took issue with notations on the December 2016 VA migraine examination Disability Benefits Questionnaire (DBQ) examination report. Specifically, the Veteran and her representative highlighted that on "Block 7. Functional Impact: Does the Veteran's headache condition impact his or her ability to work?", the examiner answered "no." They also identified that on the following box, "8. Remarks, if any:", the examiner wrote out that the "Vet is unable to work due to daily migraine headaches." Further, the examiner identified almost every symptom on the DBQ, which is consistent with severe and extensive impact on the Veteran's ability to work. For example, in section 4, prostrating attacks of headache pain, the examiner identified that the Veteran has characteristic prostrating attack of migraine/non-migraine headache pain that occur once every month. The examiner also noted that the Veteran to have very prostrating and prolonged attacks of migraines/non-migraine pain, productive of severe economic inadaptability according to the examiner. All medical reports and records must be read as a whole. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). With the exception of the December 2016 VA examiner's "no" response to whether the Veteran's migraines impact her ability to work, the December 2016 DBQ describes numerous ways in which the Veteran's migraines impacts her daily functioning. A holistic review of the examination report, indicate that the Veteran's migraines are of a greater severity and thus, warrant a higher, 50 percent rating. Further, during the July 2021 hearing, the Veteran testified that she experiences residual symptoms after her headaches pass, symptoms which are not clearly reflected in the December 2016 headaches DBQ. The Veteran testified that she experiences grogginess and difficulties caused by the medications used to treat her migraine attacks. See July 2021 Hearing Transcript. According to the Veteran's testimony, these additional symptoms interfere with her ability to function and extend the periods in which the Veteran is unable to work or function. The Veteran also reported that her symptoms have worsened since her December 2016 examination, with more frequent migraines with prostrating attacks. Her VA treatment records support this assertion, as the medical evidence shows that she has been prescribed different medications and dosages to treat her migraines. The December 2016 DBQ identifies criterion for both 30 and 50 percent disabling under DC 8100. For example, once a month attacks is a criterion for a 30 percent rating. The identified prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability is a criterion for a 50 percent ranting under DC 8100. Based on the symptoms of record on the December 2016 DBQ, including the remark in box 8 that the Veteran is unable to work, the Board finds that the balance of the evidence warrants a 50 percent rating under DC 8100. Based on the above while reading the evidence as a whole and granting the Veteran the benefit of the doubt regarding the frequency of symptoms, the Board finds that the Veteran's migraine condition warrants a rating of 50 percent disabling rating for the entire period on appeal. As such, this satisfies the Veteran's requested disability rating for her migraine headaches. Accordingly, the appeal is granted. 2. Entitlement to an initial increased rating in excess of 50 percent disabling for posttraumatic stress disorder The Veteran contends that her psychological disability, currently diagnosed at posttraumatic stress disorder (PTSD) warrants a 70 percent rating. Specifically, the Veteran and representative argue that the sleep disturbances the Veteran experiences are severe enough to warrant the increased rating. Mental health disabilities are rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 Schedule of rating Mental Disorders. The General Rating Formula for Mental Disorders identifies that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productive is found. Example symptoms include: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The General Rating Formula identifies that a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Example symptoms include: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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. Id. In Mauerhan v. Principi, the Court of Veterans' Claims explained that "the factors listed in the rating formula [for mental disorders] are 'examples' of conditions that warrant particular ratings" that are intended to assist the adjudicator in differentiating between levels of disability, a task that would be "extremely ambiguous" without the listed factors. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Court made clear, however, that "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Id. Thus, this "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. The Board finds that the evidence of record does not support a rating in excess of the Veteran's current 50 percent rating for posttraumatic stress disorder. Veteran has been afforded three VA examinations for her mental health disability. The first in April 2014, a second in December 2016, and most recently in June 2020. The April 2014 and June 2020 examinations have near identical symptoms and findings while the December 2016 examiner found her condition less severe at the time. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's symptoms have generally been consistent for the entire period on appeal as represented by the June 20 VA examination. As such, the June 2020 VA examination, the most recent on record, is found to exemplary of the Veteran's condition. The June 2020 VA examination confirmed a diagnosis of PTSD. The examiner identified symptoms including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent event, disturbances of motivation and mood, and difficulties establishing and maintain effective work and social relationship. The examiner noted that the Veteran arrived on time, presented as casually dressed, neatly groomed with adequate hygiene, polite, cooperative and engaging manner. The examiner noted that the Veteran was oriented to person, place, and time. The examiner noted the Veteran's thinking was logical and goal-oriented with fluent speech of normal rate and volume. The examiner noted auditory compression was within normal limits. The examiner noted full range affect with no signs of hallucinations or delusions. The Veteran denied homicidal or suicidal ideations. The examiner also noted that the Veteran is capable of managing her own financial affairs. The April 2014 and December 2016 VA examination reports do not reflect clinical findings or reported symptoms more severe than those found on the June 2020 VA examination. Here, the June 2020 medical evaluation of record constitutes probative evidence weighing against an increase in the Veteran's PTSD. The examiner noted all observed, clinically significant symptoms ascribable to the Veteran's condition. The examination represents the conclusion of a medical professional with sufficient expertise, is based on the Veteran's medical history and examination, and is support by a clear explanation sufficient for the Board to make an informed decision. Notably, the Veteran has not provided any competent medical evidence or opinion to the contrary, or identified evidence that diminishes the probative value of the VA opinions against the claim. Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has considered the Veteran's lay statements and testimony but finds they do not present sufficient evidence to warrant a rating in excess of 50 percent disabling. The Veteran identified that her chronic sleep disturbances affect her life as she has not had an unimpaired night's sleep since 2012. See e.g., July 2021 Hearing Transcript; July 2017 VA Form 9. Chronic sleep impairment is one of the symptoms completed and noted by all three VA examiners. While sleep impairment itself is not a listed criterion, its effect is indirectly measured by the other listed criteria and is incorporated in how the Veteran's mental health disability impacts her social and occupational impairment. The Board finds the Veteran credible in her testimony that it impacts many areas. However, the impact is not so severe as to warrant a 70 percent rating. No examiner of record has found the Veteran's combination of symptoms severe enough to have occupational and social impairment with deficiencies in most areas. The Veteran's cognitive functions such as speech, logical thought, spatial orientation, and impulse control have not been noted to be impaired. The Veteran is found able to manage her own financial affairs. There is no evidence that the chronic sleep impairment has caused hallucinations. As such, the Veteran's PTSD is not so severe as to severely effect most areas as the forementioned areas are intact. The June 2020 examiner did note difficulty in establishing and maintaining effective work and social relationships. This single finding, however, does not outweigh the preponderance of the evidence weighing against the assignment of a higher, 70 percent rating in this case. Indeed, during the June 2020 VA examination, the Veteran reported having good social support and having good relationships with her husband and adult son. She reported that she completed a bachelor's degree in 2018 and that she was in her second year of a master's program for social work; she stated that she was doing well in school. Her VA treatment records confirm her reports of functioning well in her studies; she has reported managing multiple classes at a time and that she enjoys the people she engages with at school. See January 2020 VA treatment records. Thus, even consider any difficulties with establishing effective relationships and the impact of any sleep impairments, the preponderance of the evidence does not show that the Veteran's PTSD symptoms are of such a frequency, severity, or duration to more closely approximate the criteria contemplated by a 70 percent disability rating. Moreover, a higher, 100 percent rating is not appropriate at any time during the period on appeal, as there is no evidence of symptoms such 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. 38 C.F.R. § 4.130, DC 9411. Neither the Veteran testimony nor any of the medical evidence indicates that she experiences symptoms that approximates any of the above symptoms for a 100 percent rating. The VA examination reports, and treatment records consistently describe her as alert, oriented, without severe memory loss, exhibiting adequate insight/judgment, and showing no signs of hallucinations or delusions. Thus, there is no basis to assign an even higher, 100 percent rating for her PTSD. Unfortunately, even with granting the Veteran every benefit of the doubt, the Board finds that the preponderance of the evidence is against the claim. Therefore, the Veteran's appeal for an increased rating in excess of 50 percent disabling for PTSD must be denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.