Citation Nr: 21067831 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 13-15 746 DATE: November 5, 2021 ORDER Entitlement to a rating in excess of 50 percent for anxiety disorder, not otherwise specified is denied. Entitlement to a rating in excess of 30 percent for tension headaches is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 16, 2018, is denied. FINDINGS OF FACT 1. The Veteran's anxiety disorder has been manifested by irritability, sleep impairment, occasional panic attacks, and disturbances of motivation and mood; but, without suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression; impaired impulse control spatial disorientation; neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; or occupational and social impairment with deficiencies in most areas. 2. The Veteran's tension headaches have been manifested by characteristic prostrating attacks but, without very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Prior to November 16, 2018, while the Veteran met the schedular criteria for TDIU, the preponderance of the evidence shows that the combined effects of his service-connected disabilities did not preclude him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for anxiety disorder, not otherwise specified have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2021). 2. The criteria for entitlement to a rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2021). 3. The criteria for entitlement to TDIU prior to November 16, 2018, have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The matters were most recently before the Board in January 2020 and remanded for further development. Having been completed, the issues are ready for appellate disposition. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities 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. The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to a rating in excess of 50 percent for anxiety disorder The Veteran's anxiety has been assigned a 50 percent disability evaluation under the provisions of the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, Diagnostic Codes 9413. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with the current 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such as 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. On VA examination in November 2010, the Veteran was active with recreational activities including golf and hunting. He was married and had a good relationship with his wife, daughter, son-in-law, and granddaughter. He had no mental health treatment. He was oriented in all spheres and was dressed neat and appropriate. His speech was direct. Mood was euthymic. He was irritable and anxious. Affect was appropriate. Insight was moderate and judgment was sound. There were no suicidal or homicidal ideations. There was some sleep impairment. He did avoid thinking of Vietnam. The June 2016 VA examiner found the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behaviors, self-care, and conversation. The Veteran was doing volunteer work with veterans. He did not take any psychiatric medications and had not sought treatment in the last few years. He denied suicidal and homicidal ideation. He did complain of road rage, but never acted out. The examiner noted anxiety, panic attacks occurring weekly or less, and sleep impairment. The Veteran was dressed and groomed appropriately. Affect was congruent. Though process was goal directed. He was oriented in all spheres. He denied significant depressive episodes. Speech was normal. Memory was intact. Concentration was reported as poor. The Veteran indicated that his current stressors involved medical and physical problems, family stressors, and "worry about everything." On VA examination in October 2017, the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran again denied any mental health treatment or medications. He denied any suicidal or homicidal ideation. He had anxiety, panic attacks that occurred weekly or less, sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He was appropriately groomed and dressed. He was oriented. Thought process was goal directed. Depression was not a significant issue. Speech was normal. Memory was generally intact. He described himself as moody, which impacted his relationships with others. The Veteran was afforded an additional examination in February 2019. He reported socializing primarily with his family. He complained of a short temp. He said that his anxiety had not changed over time and appeared stable. Anxiety resulted in reduced reliability and productivity in an occupational environment in that it affected his interpersonal skills, concentration and focus due to distracting effects. He had been married for 52 years. He had a good relationship with his wife, daughter, and granddaughter. He had one good friend and like to play golf. He was employed mowing lawns seasonally. Depression was not a significant issue. He denied any mental health treatment. The Veteran did have sleep impairment. He was groomed, oriented, and alert. Speech was normal. Thought process was linear and coherent, logical and goal directed. The Veteran denied any current suicidal or homicidal ideation, paranoia, delusions, and auditory and visual hallucinations. Insight was good. Judgment was intact. Upon consideration of the above, the Board finds that a disability rating in excess of 50 percent is not warranted. VA examinations, as well as the Veteran's lay statements, show that the Veteran's anxiety disorder was manifested by symptoms associated with a 50 percent rating, including complaints of anxiety, irritability, sleep impairment, occasional panic attacks, and disturbances of motivation and mood. His anxiety has not manifested symptoms associated with a 70 percent rating. Notably, there has been no complaints of: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. His reports of difficulty in adapting to stressful circumstances are accounted for in the current 50 percent rating. While there was some indication the Veteran had difficulty maintaining relationships, he has been married to his current wife for over 52 years and reports good relationships with her, his daughter and granddaughter. He had one good friend and played golf. He worked as able to work as a manager for over 100 employees in the last 10 years of employment until his retirement in 2009. He also volunteered at one time helping other veterans. He continues to mow lawns seasonally. The Board notes the Veteran testified to flashbacks a couple times a week, but it was not reported to the examiners. The Veteran's wife confirmed his sleeplessness, anxiety, and irritability. See March 2017 statement. Nevertheless, the Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms (flashbacks and sleep disturbances) are more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. While the Veteran had some difficulty adapting to some stressful experiences and some social settings, which are contemplated by a 70 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The Veteran's disability picture, as described above, is found to most nearly approximate the criteria for the currently assigned 50 percent rating throughout the appeal period. 38 C.F.R. § 4.7. In reaching the above determination, the Board has also considered the Veteran's statements that a higher rating is warranted. His statements, however, are not competent evidence to identify a specific level of disability relating his anxiety to the appropriate rating criteria. Importantly, the medical findings, as provided in the VA examination reports, considered the Veteran's statements as to the manifestations of his service-connected anxiety disorder and directly addressed the criteria under which the Veteran's service-connected anxiety disorder has been evaluated. All potentially applicable diagnostic codes have been considered, and the Veteran is not entitled to a rating in excess of the 50 percent rating assigned. See Schafrath, 1 Vet. App. at 593; Hart, supra. Entitlement to a rating in excess of 30 percent for tension headaches The Veteran contends that he is entitled to a higher rating because he suffers from headaches three to four times per week lasting approximately four hours and causes light sensitivity and an inability to function. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 50 percent rating is the highest schedular rating under DC 8100. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, 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). The Board concludes that the Veteran has had migraines with characteristic prostrating attacks occurring on average once a month over the last several months throughout the appeal period, corresponding to the criteria for a 30 percent rating under DC 8100. However, a higher 50 percent rating under DC 8100 is not warranted as it has not been shown that his headaches were very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Notably, on VA examination in November 2010, the Veteran reported headaches about three to four times a week. He took Ibuprofen as needed. The neurological examination was normal. The 2015 Disability Benefits Questionnaire (DBQ) reveals headaches caused nausea and sensitivity to sound. He had characteristic prostrating attacks more frequently than once a month, but they were not very frequent prostrating or prolonged attacks. On examination in October 2017, the Veteran denied prostrating attacks of headache pain. The examiner indicated that the Veteran's headache condition did not impact his ability to work. The examiner further opined that there would not be functional limitations due to headaches if he were allowed to go into a dark room and rest if a headache occurred. The examiner noted that all types of physical and sedentary employment could be obtained and retained. The examiner reasoned that for decades, the Veteran was able to be gainfully employed without compromise even though he had a headache condition and thus, the same would apply now. On examination in February 2019, the Veteran again denied prostrating attacks of headache pain. The examiner indicated with regard to unemployability, the Veteran's headaches were not typically prostrating in nature and he was able to work through them. Thus, in their current from they would only restrict him from jobs that had heavy light exposure. The Veteran would also need a job that allowed intermittent time off for severe headaches. VA treatment records indicate the Veteran had a chronic headache condition, for which he took Ibuprofen as need. However, he repeatedly denied headaches, to include in May 2018, November 2018, May 2019, October 2019, April 2020, and August 2020. Thus, the Board concludes that the Veteran did not have headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the appeal period. A higher 50 percent rating is not warranted under DC 8100. In reaching the above determination, the Board has also considered the Veteran's statements that a higher rating is warranted. His statements, however, are not competent evidence to identify a specific level of disability relating his headaches to the appropriate rating criteria. Importantly, the medical findings, as provided in the VA examination reports and VA treatment records, considered the Veteran's statements as to the manifestations of his service-connected tension headaches and directly addressed the criteria under which the Veteran's service-connected headache disorder has been evaluated. The Veteran is not entitled to a rating in excess of the 30 percent rating assigned. See Schafrath, 1 Vet. App. at 593; Hart, supra. Entitlement to TDIU The Veteran asserted that he was unable to obtain and maintain gainful employment as a result of his service-connected disabilities. In the Veteran's November 2018 Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time in March 2009 when he became too disabled to work. He indicated that his CAD, headaches, and anxiety disorder prevented him from securing or following any sustainably gainful occupation. He indicated that he continued to work 12 hours per week mowing lawns from 1993 to the present. He reported receiving a high school education. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the Veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. At the outset, the Board notes that while this appeal was pending, the Veteran was awarded a 100 percent rating effective November 16, 2018, for CAD. See March 2019 Rating Decision. He was also awarded special monthly compensation (SMC) based on housebound criteria effective November 16, 2018. Consequently, the claim for a TDIU from November 16, 2018, onward is moot. However, the period prior to November 16, 2018, remains on appeal. See Bradley v. Peake, 22 Vet. App. 280 (2008) (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). Prior to November 16, 2018, the Veteran's service-connected disabilities included: CAD, 60 percent from August 31, 2010; anxiety, 50 percent from September 23, 2010; head scar, 30 percent from September 23, 2010; tension headaches, noncompensable from April 5, 1969; scar right parietal skull ,10 percent from April 5, 1969; bilateral tinnitus, 10 percent from September 23, 2010; bilateral hearing loss, noncompensable from June 27, 2005; and CAD scar, noncompensable from August 31, 2010. His combined ratings were 80 percent from August 31, 2010, and 90 percent from September 23, 2010. Prior to November 16, 2018, the Veteran did have more than one service-connected disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Thus, he did meet the criteria for a schedular TDIU for the period on appeal. 38 C.F.R. § 4.16(a). While he met the schedular criteria prior to November 16, 2018, he did not meet all the threshold requirements for a TDIU. Notably, the November 2010 VA examiner noted the Veteran had been retired since March 2009. He was the night manager for the last 10 years prior to his retirement and managed over 100 employees. The May 2012 VA examiner found that the Veteran's CAD did not impact his ability to work. The June 2016 VA examiner determined the Veteran had only occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks as a result of anxiety disorder. The October 2017 mental health examiner did find some occupational impairment with reduced reliability and productivity. The examiner did not however indicate the Veteran was unemployable, but rather there may be some cognitive limitations due to the Veteran's difficulty analyzing problems, following instructions, and staying on task. The November 2017 VA examiner found that CAD did not render the Veteran unemployable and further stated that there was no functional limitation preventing the Veteran from working. The examiner noted that while the Veteran was not working, in all the decades he was able to work, he was able to totally perform without compromise. The examiner additionally stated the Veteran stopped working before his myocardial infarction and coronary artery bypass graft and did not stop working due to cardiac symptoms. The Veteran was able to perform physical and sedentary tasks except for lifting over 15 pounds because lifting gave him chest wall, not anginal, pain. Additional VA examiners in November 2017 opined that scars, headaches, hearing, and tinnitus did not render him unemployable. The headache examiner further stated that there would not be any functional limitations if he were allowed to go into a dark room and rest if a headache occurred. Moreover, the examiner stated that all types of physical and sedentary employment could be obtained and retained. The examiner reasoned that for decades the Veteran was able to be gainfully employed without compromise even though he had this condition and thus, the same would apply now. The Board has considered the Veteran's statements that he would be unable to work because employers would not hire him with restrictions from his medical conditions; however, there is no medical evidence to support his inability to work or his assertion. Given the lack of evidence showing impairment due to service connected disability which would preclude employment prior to November 16, 2018, the Board concludes that the preponderance of the evidence is against the claim for TDIU. Therefore, there is no reasonable doubt to be resolved. The appeal in the matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.