Citation Nr: 21071591 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-02 959 DATE: November 30, 2021 ORDER A 70 percent disability rating is granted for posttraumatic stress disorder (PTSD) for the entire period on appeal prior to May 20, 2021 (exclusive of a period of a temporary total rating from November 7, 2011 to February 29, 2012), subject to the law and regulations governing the award of monetary benefits. A disability rating in excess of 70 percent for PTSD is denied. Service connection for intervertebral disc disease, lumbar facet arthropathy, and degenerative disc disease of the lumbar spine is granted. Service connection for migraine headaches is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to May 20, 2021 is remanded. Entitlement to special monthly pension (SMP) is remanded. FINDINGS OF FACT 1. Prior to May 20, 2021, the Veteran's PTSD was productive of occupational and social impairment that more nearly approximated deficiencies in most areas, such as work, school, family relations, judgment, or mood. 2. The Veteran's PTSD has not been productive of total social and occupational impairment. 3. It is at least as likely as not that current disabilities of the Veteran's lumbar spine can be attributed to active service. 4. It is at least as likely as not that the Veteran's migraine headaches are secondary to her service-connected PTSD. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a 70 percent disability rating for PTSD have been met for the period on appeal prior to May 20, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for intervertebral disc disease, lumbar facet arthropathy, and degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1987 to May 1993. Her decorations include the Army Service Ribbon, the Army Lapel Button, and the National Defense Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Decatur, Georgia. In August 2018 and December 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. In June 2021, after taking further action, the AOJ, in pertinent part, increased the rating for PTSD from 50 to 70 percent and granted TDIU, effective May 20, 2021. The prior determinations were otherwise confirmed and continued, and the case was returned to the Board. See August 2021 supplemental statement of the case (SSOC). 1. A 70 percent disability rating is granted for PTSD for the entire period on appeal prior to May 20, 2021 (exclusive of a period of a temporary total rating from November 7, 2011 to February 29, 2012). 2. A disability rating in excess of 70 percent for PTSD is denied. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran seeks to establish higher ratings for her service-connected PTSD. She is in receipt of a 50 percent rating for PTSD for the period prior to May 20, 2021, and a 70 percent rating for the period from May 20, 2021 under 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities other than eating disorders are evaluated under a general rating formula for mental disorders. Under the General Formula for Mental Disorders (General Formula), a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A schedular rating of 100 percent is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed in the rating criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. 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). For the period on appeal prior to May 20, 2021, the Board finds that the evidence is in relative equipoise as to the matter of whether an evaluation of 70 percent is warranted for the Veteran's PTSD. As noted previously, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The Board is satisfied that the Veteran's disability picture more closely approximated the criteria required for that rating for the period on appeal prior to May 20, 2021. The Veteran underwent a VA PTSD examination in March 2011. While the VA examiner assessed that the Veteran's PTSD was productive of social and occupational impairment with occasional decrease in work efficiency with intermittent periods on inability to perform occupational tasks although but with generally satisfactory functioning, which is consistent with a 30 percent rating, the examination report reflected that the Veteran reported a history of suicide attempts, and the examiner noted that her PTSD was productive of blunted affect and impaired impulse control with episodes of violence. The examiner also noted that the Veteran was "significantly depressed" and that she was frequently late or absent from work due, in part, to excessive stress. The Veteran underwent another VA PTSD examination in January 2017. The VA examiner assessed that the Veteran's PTSD was productive of occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and obsessional rituals which interfered with routine activities. The Veteran underwent a third VA PTSD examination in March 2018. The VA examiner assessed that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood due to depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired judgment, disturbances of motivation and mood, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the frequency, severity, and duration of her psychiatric symptoms caused social and occupational impairment that more nearly approximated the criteria for a 70 percent rating for the period on appeal prior to May 20, 2021. In this regard, while the March 2011 and January 2017 VA examiners assessed that the Veteran's PTSD was productive of occupational and social impairment that did not meet the criteria for a 70 percent rating under the General Formula, the Board finds that the frequency, severity, and duration of her psychiatric symptoms, to include impaired impulse control, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting, caused social and occupational impairment that more nearly approximated the criteria for a 70 percent rating during that period. The Board further finds, however, that an evaluation in excess of 70 percent is not warranted for the Veteran's PTSD at any point during the period on appeal. A higher rating would be warranted if the Veteran's condition was causative of total occupational and social impairment. Here, the evidence weighs against such a finding. The VA examination reports, treatment records, and other evidence relevant to the period on appeal do not establish the presence of total social and occupational impairment. May and June 2021 VA examination reports, for example, show that the Veteran reported that she lived with her brother and got along well with her oldest son, oldest grandson, one of her sisters, and her brothers. Earlier reports similarly reflected that she visited with her mother frequently, lived with her cousin for a time, saw her youngest son every week, was in touch with one of her sisters, and saw her grandchildren on their birthdays. In light of this evidence, it appears clear that her capacity for social functioning has not been totally impaired by her PTSD. While a February 2019 VA examiner noted that the Veteran was "100% service connected for PTSD, which was not the focus of the present examination, but which accounts for the symptoms endorsed," the examiner appears to have been referring to the temporary total rating that was in effect from November 7, 2011 to February 29, 2012. Significantly, the examiner did not provide an assessment that the Veteran's PTSD was productive of total social and occupational impairment. For all of these reasons, the Board finds that an evaluation in excess of 70 percent is not warranted for the Veteran's PTSD any point during the rating period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Every veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by servicethe second step necessary to rebut the presumption of soundnessa lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. If the presumption of sound condition is not rebutted, "the Veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the Veteran's entry into service. Id.; 38 C.F.R. § 3.322. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding arthritis and organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for intervertebral disc disease, lumbar facet arthropathy, and degenerative disc disease of the lumbar spine is granted. The Veteran seeks to establish service connection for a lumbar spine disability. She asserts that she has a current disability that was incurred as a result of falls and other events during active service. See, e.g., July 2011 VA Form 21-526; November 2011 VA Form 21-4138. Following review of the record, the Board concludes that the evidence supports her claim. An August 2020 VA examination report shows diagnoses of intervertebral disc disease, lumbar facet arthropathy, and degenerative disc disease of the lumbar spine. As such, the first element of service connection has been established. The evidence weighing in favor of the Veteran's claim includes a February 2021 VA examiner's opinion that the Veteran's current lumbar spine disability at least as likely as not began during service. In reaching this conclusion, the examiner noted that the Veteran credibly reported falls from her bunk and down a flight of stairs during service, which was consistent with the current diagnoses in terms of the clinical history, physical examination, and mechanism of injury. The examiner noted that the Veteran had been diagnosed with degenerative joint disease of the lumbar spine in February 1998 and explained that a history of back trauma such as due to the Veteran's fall in 1989 and continued reports of back pain and strenuous activities can lead to degenerative joint disease. As such, the examiner concluded that a nexus to service had been established. In June 2021, the February 2021 examiner issued an addendum opinion wherein he found that the Veteran had a lumbar spine disability, identified as scoliosis, that clearly and unmistakably pre-existed service. In so doing, however, the examiner did not modify his prior opinion to the effect that the Veteran's currently diagnosed disabilities of the lumbar spine (which do not include scoliosis) were related to service. Moreover, in light of the analysis set out in the February 2021 opinion, indicating that the current disabilities were consistent with the described mechanism of injury in service, it cannot be concluded that it is clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran's pre-existing disability did not permanently or chronically increase in severity during service beyond the natural progress of the condition. The Board finds that the 2021 VA examiner's opinions are probative because they are based on an accurate understanding of the facts and articulate reasons for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no adequate contrary medical opinions of record in light of the Board's finding in its December 2020 decision that a prior unfavorable VA nexus opinion in August 2020 was inadequate. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current lumbar spine disability can be attributed to service. Accordingly, and after resolving doubt in favor of the Veteran, the Board finds that service connection for intervertebral disc disease, lumbar facet arthropathy, and degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue is granted. 4. Service connection for migraine headaches is granted. The Veteran asserts that her migraine headaches started during active service. Specifically, she contends that her headaches started in service due to prolonged usage of computers. She has also asserted that she suffered migraine headaches after a fall during service, and that she began suffering from headaches during service as a result of spousal abuse. Alternatively, she asserts that her headaches are secondary to her service-connected PTSD. See, e.g., July 2011 VA Form 21-526; November 2011 VA Form 21-4138; June 2018 VA Form 21-4138. The record reflects that the Veteran has a current disability. See, e.g., August 2020 VA examination report (showing a diagnosis of migraine headaches). As such, the first element of service connection has been established. The evidence weighing in favor of the Veteran's claim includes a February 2021 VA examiner's opinion that the Veteran's migraine headaches are at least as likely as not triggered, worsened, or aggravated beyond natural progression by stress and PTSD. The examiner reasoned that numerous medical studies and literature demonstrated an association and higher prevalence and aggravation of migraine headaches due to PTSD and stress. The examiner noted that stress is a well-established and known trigger for migraine headaches. The examiner also noted that a January 2004 VA treatment record documented that the Veteran had migraine headaches and PTSD and explained that PTSD can cause the Veteran to have nightmares, troubled sleeping, and sleep deprivation, which can cause worsening of migraine headaches. In June 2021, the February 2021 examiner issued an addendum opinion wherein he found that it was unlikely that the Veteran's migraine headaches were proximately due to, or directly caused by, her PTSD. In so doing, however, the examiner did not modify his prior opinion to the effect that the Veteran's headaches were at least as likely as not "triggered" by her PTSD and associated stress. In the Board's view, that finding is tantamount to a finding of direct causality. The Board finds that the 2021 VA examiner's opinions are probative because they are based on an accurate understanding of the facts and articulate reasons for the conclusions reached. Nieves-Rodriguez, 22 Vet. App. at 304. There are no adequate contrary medical opinions of record in light of the Board's finding in its December 2020 decision that prior unfavorable VA nexus opinions dated in August 2020 and December 2020 were inadequate. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's migraine headaches are secondary to her service-connected PTSD. Accordingly, and after resolving doubt in favor of the Veteran, the Board finds that service connection for migraine headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The appeal of this issue is granted. REASONS FOR REMAND 1. Entitlement to a TDIU prior to May 20, 2021 is remanded. 2. Entitlement to SMP is remanded. As outlined above, the Board is granting service connection for a lumbar spine disability and migraine headaches, as well as a higher rating for service-connected PTSD for the period prior to May 20, 2021. As these actions may result in a new combined rating and alter the evidentiary basis for the TDIU and SMP claims, the Board will defer adjudication of these matters pending implementation of the Board's decision. These matters are REMANDED for the following action: 1. Implement the Board's decision to grant service connection for a lumbar spine disability and migraine headaches, as well as to grant a higher rating for service-connected PTSD for the period prior to May 20, 2021. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraph, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and her representative should be issued a SSOC. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.