Citation Nr: 21070354 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-24 639 DATE: November 23, 2021 ORDER Entitlement to an increased rating of 50 percent for migraine headaches is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating for cervical spondylosis with degenerative disk disease at C6-7, rated as 10 percent disabling prior to January 18, 2016, and 20 percent, thereafter, is dismissed. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, and anxiety, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran experienced migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. The Veteran submitted testimony during the October 2020 Board hearing and an October 2020 written statement indicating his desire to withdraw from appellate consideration the issue of entitlement to an increased rating for cervical spondylosis with degenerative disk disease at C6-7, rated as 10 percent disabling prior to January 18, 2016, and 20 percent, thereafter. 3. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disorder to include PTSD, depression, and anxiety is at least as likely as not related to in-service fear of hostile military activity. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for migraines are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 2. The criteria for withdrawal of entitlement to an increased rating for cervical spondylosis with degenerative disk disease at C6-7, rated as 10 percent disabling prior to January 18, 2016, and 20 percent, thereafter, by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for an acquired psychiatric disorder to include PTSD, depression, and anxiety are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from November 1994 to November 2008. This matter comes to the Board of Veterans' Appeals (Board) from June 2011 and March 2012 rating decisions. The Veteran testified at a virtual Board hearing in October 2020. The Veteran raised the issue of entitlement to a TDIU during the hearing. Thus, it is considered a component of his increased rating claim for migraine headaches. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). After the hearing the Veteran also formally filed a TDIU claim and underwent VA examinations addressing his headaches and employability in January 2021. The Agency of Original Jurisdiction (AOJ) considered this evidence in a February 2021 rating decision. Thus, a remand for AOJ consideration of the evidence is not warranted. Also, even though the Veteran filed a separate claim for a TDIU, which the AOJ adjudicated, this matter is still before the Board as part of his increased rating claim for migraine headaches, pursuant to Rice. Increased Rating 1. Entitlement to an increased rating higher than 30 percent for migraine headaches The Veteran contends that he has headaches that are so severe that they impact his ability to work. He testified at the Board hearing that he has headaches three to four times per week, or at least 20 times per month, where he has to lie down because of the pain. See October 2020 Board hearing transcript, p. 16. He noted that he has to take time off from work or miss days of school because of his migraines. Id. He also noted that the times he had migraines about 20 times a month correlated with the time he had to miss work or school but that he was not presently working. Id. at 18. 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 than the next higher rating. 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 contain 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, effective November 25, 2008, the Veteran has had migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, corresponding to the criteria for a 50 percent rating under DC 8100. A December 2008 VA examination report notes that the Veteran described symptoms consistent with migraine headaches. He reported having headaches behind his eyes causing nausea, dizziness, and mild light and sound phobia. During a flare-up he was sometimes able to go to work but required over-the-counter medication. Other times he was able to take care of some household chores but could not go to work. Still other times he had to stay in bed and was not able to do anything. The headaches occurred, on average, three times per week and sometimes lasted for two to three days at a time. He had not been prescribed medication for the headaches. The examiner found that due to the headaches he should avoid working with hazards, such as frequent climbing and balancing, working at unprotected heights, working with fast-moving machinery, and driving automotive equipment during an exacerbation. A March 2010 buddy statement was submitted by the Veteran's friend that she had known the Veteran since he was still in the Marine Corps and was aware that he experienced debilitating headaches to the point of not being able to leave the house. His migraines occurred at least three to four times per week. A May 2010 VA neurology consult shows the Veteran reported headaches that would come and go. He had a few per month over the last year or so and could have a couple per week. The headaches were "stereotyped" and often started in the frontal area sometimes behind the right or left eye, build up, become severe, and variable degree of light and sound sensitivity, and variable nausea. Sometimes he could carry on and sometimes he had to lie down. In January 2016, a VA examination report shows migraine headaches involving pain behind the eyes, sound and light sensitivity, difficulty sleeping, and nausea. The Veteran described constant head pain on both sides of the head that worsened with physical activity. He also experienced nausea, sensitivity to light, sensitivity to sound, and changes in vision (such as scotoma, flashes of light, tunnel vision). Duration of typical head pain lasted more than two days. He described characteristic prostrating attacks of migraine and non-migraine headache pain more frequently than once per month. He did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. The migraines affected his ability to work in that his work might be impacted when suffering from a severe bout of head pain. It was noted that the Veteran was presently pursuing a degree as a dental hygienist since 2010 while working full-time in a supply warehouse for Target and had been doing so since 2013. A January 2021 VA examination report shows the Veteran reported experiencing daily headaches. They would start off dull and increase in intensity. His headaches would last for hours. He reported experiencing more than 30 headaches per month. He indicated that he had been seen in the emergency room prior to COVID secondary to migraines. He described constant head pain that was pulsating or throbbing. The pain was on both sides of the head. There also was nausea. The headache pain lasted less than one day. It was noted that the Veteran did not have any characteristic prostrating attacks of migraine/ non-migraine headache pain. He also did not have very prostrating and prolonged attacks of migraines/ non-migraine pain productive of severe economic inadaptability. It was noted that the Veteran's migraine headaches could impact his focus or ability to concentrate, which could impact duties that required such activities. He reported that he would take one to four days out of work when headaches occurred. The pain was a dull pain behind his eyes and increased in intensity. The pain radiated to his occipital region. When the pain increased, he developed nausea, in which he needed to lay down. The pain occurred approximately a couple of times per week. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's credibility is not undermined and is consistent with very prostrating and prolonged attacks of migraine headaches productive of severe economic inadaptability. For instance, he testified at the October 2020 Board hearing that he had headaches three to four times per week, or 20 times per month that required him to lie down and not go to work. The Veteran's statements are consistent with the medical findings of record. Specifically, the December 2008 VA examination report notes that during a flare-up of headaches, sometimes the Veteran had to stay in bed and was not able to do anything. The headaches occurred, on average, three times per week and sometimes lasted for two to three days at a time. The examiner found that due to the headaches he should avoid working with hazards, such as frequent climbing and balancing, working at unprotected heights, working with fast-moving machinery, and driving automotive equipment during an exacerbation. A May 2010 VA neurology consult also notes that sometimes the headaches, which he experienced a few per month over the last year or so and could have a couple per week, required that he lie down. The January 2016 VA examination noted characteristic prostrating attacks of migraine and non-migraine headache pain more frequently than once per month. While it was noted that the Veteran did not have very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain, his migraines affected his ability to work in that his work might be impacted when suffering from a severe bout of head pain. Even though the Veteran was working at that time, the criteria for a 50 percent rating contemplate very frequent prostrating attacks that are productive of or capable of producing severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The January 2021 VA examiner also found that the Veteran reported experiencing more than 30 headaches per month and had been seen in the emergency room prior to COVID secondary to migraines. While the examiner also found that the Veteran did not have any characteristic prostrating attacks of migraine/ non-migraine headache pain, or any very prostrating and prolonged attacks of migraines/ non-migraine pain productive of severe economic inadaptability, this is inconsistent with the reports of 30 headaches per month. Further, the examiner noted that the Veteran's migraine headaches could impact his focus or ability to concentrate, which could impact duties that required such activities. He reported that he would take one to four days out of work when headaches occurred. When the pain increased, he developed nausea, in which he needed to lay down. The pain occurred approximately a couple of times per week. Considering all relevant evidence of record, the Board finds the medical and lay evidence more closely approximates the criteria for a 50 percent rating for the migraine headaches. The Veteran has consistently stated that he experiences 15 to 30 headaches per month, and sometimes has to lie down and do nothing. He would not be able to work during these times. Overall these findings are consistent with very prostrating and prolonged attacks of migraine/ non-migraine pain productive of severe economic inadaptability. Thus, a higher 50 percent rating is warranted for the Veteran's migraine headaches under DC 8100 throughout the pendency of the appeal. 2. Entitlement to an increased rating for cervical spondylosis with degenerative disk disease at C6-7, rated as 10 percent disabling prior to January 18, 2016, and 20 percent thereafter The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawals may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issue of entitlement to an increased rating for a cervical spine disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran withdrew the appeal during testimony at the Board hearing, which was explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). See October 2020 Board hearing transcript, p. 1. The Veteran also submitted a written withdrawal of the increased rating claim for the cervical spine disability in October 2020. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection 3. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, and anxiety The Veteran contends that he has an acquired psychiatric disorder related to his military service. He testified at the October 2020 Board hearing that he did perimeter security for the Marine Wing Support Squadron while in Iraq and that they were fired upon while doing night security, day security, and perimeter security. See October 2020 Board hearing transcript, p. 4. He recalled this happening in September 1996. Id. at 7. He also stated that he feared for his life while in Iraq and that he started getting psychiatric treatment right after he got out of service. Id. at 8. Alternatively, he contends that his service-connected back, neck, and migraine headache disabilities aggravates his psychiatric condition. Id. at 11. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(2). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4, 2014). The AOJ certified the Veteran's appeal to the Board in 2016; hence, DSM-5 is for application in this claim. The Board concludes that the Veteran has a current disability that is related to in-service stressors involving fear of hostile military activity. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran's military occupational specialty (MOS) in service was Food Service Specialist and Recruiter. His personnel records note that he participated in Operation Southern Watch with the 13th MEU in Southwest Asia in 1997 and Operation Silent Assurance with the 13th MEU aboard the USS Peleliu, Arabian Gulf in 1997. The service treatment records are negative for any psychiatric treatment, which is consistent with his hearing testimony that he did not seek treatment until after service. See October 2020 Board hearing transcript, p. 8. VA treatment records dated in March 2010 show the Veteran had a diagnosis of mixed anxiety with depressed mood. A VA psychiatrist in April 2010 also diagnosed the Veteran with PTSD based on his reported stressors of doing security points checking during the Gulf War. The Veteran stated that he did not have direct combat action because they did not fire back but that he was carrying weapons all the time and saw explosions and dead bodies. He noted being edgy and irritable during the day. He also had lack of motivation and low energy and felt detached from his girlfriend. He had unpleasant dreams and drank a lot. He did not watch things on television related to Iraq. He noted that he was always conscious looking over the shoulder. The Veteran's girlfriend submitted a statement in April 2010 that she had witnessed the Veteran's symptoms of PTSD since November 2009 when he moved in with her, including constant mood swings and negativity, as well as lethargy, and sleeping all the time. The service department noted in March 2011 that the unit described by the Veteran did not exist within the Marine Corps command structure and it was requested that clarification of the unit assignment needed to be made. A February 2011 VA contract examination report completed by a VA psychologist notes that the Veteran believed his experiences in Iraq had created symptoms of PTSD. He reported that the symptoms of PTSD began in 1997 as a result of experiences in Iraq. He reported that while on security detail he often cleared areas that had been recently bombed and witnessed burned human remains and corpses of people who had been killed during fighting. He noted that he served in the war zone in November 1996 for two to three months as a security patrol. During his war zone duty he did not engage in any combat activities. He noted that he was constantly fearful of an attack. After conducting a mental health assessment, the psychologist diagnosed the Veteran with PTSD. It was noted that the Veteran met criterion A in that he had been exposed to a traumatic even which involved threatened death, threat to the physical integrity of self and threat to the physical integrity of others. He also responded with intense fear and horror. He also met criterion B in that the traumatic event was persistently experienced by recurrent recollection of the event, feeling as if the traumatic events were recurring, recurring distressing dream of the event, and intense distress at exposure to a similar event. He met criterion C in that he demonstrated persistent avoidance of the stimuli associated with the trauma in efforts to avoid thoughts, feelings, or conversation associated with the trauma, markedly diminished participation in activities, feeling of detachment or estrangement from others, and restricted range of effect. Finally, he met criterion D in that he had persistent symptoms of increased arousal including difficulty falling or staying asleep, difficulty concentrating, irritability or angry outbursts and hypervigilance for more than one month. In addition, the psychologist found that the Veteran's PTSD symptoms appeared to be connected to his military service, in which he saw burnt remains after bombings and experienced constant fear of attacks. He had no other reported traumatic events in his life. The Veteran also submitted a private medical opinion dated in December 2020 finding that the Veteran had PTSD and depression solely due to his service in the U.S. Marine Corps. It was noted that the Veteran's MOS in service was Food Service Specialist but that as a Marine he performed combat support duties including security of perimeters, performed foot patrol, and secured airfields. He was not injured in combat, but during his deployment in Iraq, while supporting an air group, he was fired upon and not allowed to fire back. It was noted that during his time in the Marine Corps he was deployed to Iraq, Kuwait, and Okinawa. He stated that they lost many Marines, saw death and destruction, and decaying bodies, and witnessed horrible living conditions. As a result of these events, he developed an intense fear of hostile military or terrorist activity. The Veteran's personnel records are consistent with the Veteran's descriptions of his duties in Southwest Asia during the Persian Gulf War. While there is some discrepancy as to his service in Iraq, personnel records confirm that he participated in Operation Southern Watch with the 13th MEU in Southwest Asia in 1997 and Operation Silent Assurance with the 13th MEU aboard the USS Peleliu, Arabian Gulf in 1997. This is consistent with his statements and testimony that he did perimeter security for the Marine Wing Support Squadron and that they were fired upon while doing night security, day security, and perimeter security; and that he feared for his life. Moreover, a VA psychiatrist in April 2010 and a VA psychologist in February 2011, as well as a private psychologist in December 2020, all diagnosed the Veteran with PTSD related to his reported stressors in service involving fear of hostile military activity. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current acquired psychiatric disorder, to include PTSD, depression, and anxiety, is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disorder to include PTSD, depression, and anxiety is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) during the Board hearing in October 2020. He also filed a November 2020 formal claim for a TDIU, which the AOJ adjudicated in February 2021. Given that the Board in this decision has granted the maximum increased rating of 50 percent for migraine headaches and service connection for an acquired psychiatric disorder to include PTSD, depression, and anxiety, a disability rating should be assigned and should be considered in any employability opinion regarding the Veteran's service-connected disabilities. The AOJ should develop the issue. (Continued on the next page) The matter is REMANDED for the following action: 1. Assign a disability rating and effective date for the Veteran's acquired psychiatric disorder, to include PTSD, depression, and an anxiety disorder. Then undertake all additionally indicated development necessary to readjudicate the Veteran's claim of entitlement to a TDIU. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.