Citation Nr: 21073522 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-16 576 DATE: December 8, 2021 ORDER Entitlement to an initial rating of 70 percent for depressive disorder with anxious distress is granted. Entitlement to an initial rating of 50 percent for migraine headaches including migraine variants is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine degenerative joint disease with lumbar and thoracic strain is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's depressive disorder results in occupational and social impairment with deficiencies in most areas. 2. The Veteran's migraine disability results in severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2011 to December 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). INCREASED RATINGS The Veteran seeks increased disability ratings for her migraine and psychiatric disabilities. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Depressive Disorder For her depressive disorder, the Veteran receives a 10 percent rating effective, December 10, 2014, and a 30 percent rating effective February 12, 2016 under DC 9434. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as 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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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 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; or memory loss for names of close relatives, own occupation, or own name. VA and private treatment records, the March 2014, February 2016, April 2019 VA examinations, and the Veteran's lay statements show that the Veteran's depressive disorder with anxiety is manifested by chronic sleep impairment, anxiety, depressed mood, suspiciousness, mild memory loss, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and intermittent inability to perform activities of daily living. She uses a service dog to help cope with her psychiatric disability. In addition to the symptoms above, the Veteran also reports experiencing panic attacks constantly (3-5 times weekly), hypomania, euphoric highs about 2 to 3 days with reckless behavior, the inability to properly handle money, and decreased appetite. See December 2018 VA examination. Throughout the appeal period, the Veteran highlights that her symptoms and social and occupational impairment are worse than originally rated. VA examinations highlight that there are differing opinions regarding the level of functional impairment caused by the Veteran's psychiatric disability. Her most recent VA examination highlights that she experiences occupational and social impairment with deficiencies in most areas. See December 2018 VA examination. Although early VA examinations suggest that the Veteran's occupational and social functioning were better prior to her most recent VA examination, she has consistently highlighted that her psychiatric symptoms were worse than highlighted at these examinations. Thus, after considering the Veteran's statements, the Board finds that the Veteran's disability has more nearly approximated the criteria for occupational and social impairment with deficiencies in most areas throughout the appeal period. Affording the Veteran the benefit of the doubt, the Board finds that a rating of 70 percent for her disability is warranted for the entire period on appeal. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). A rating in excess of 70 percent is not warranted because the Veteran does not have total social and occupational impairment. Although there is significant occupational impairment, the Veteran reports that she has a positive relationship with her parents and adopted parents. See December 2018 VA examination. The Board notes that the Veteran also highlights that she has difficulty building social relationships because of her trust issues, but these psychological difficulties do not totally impair her ability to socially function. As a result, a rating in excess of 70 percent must be denied. Migraines The Veteran receives a 30 percent rating for her migraine disability under DC 8100. Migraine headaches are rated pursuant to 38C.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 38C.F.R. §§4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The Board concludes that the Veteran has migraines with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability throughout the appeal period, corresponding to the criteria for a 50 percent rating under DC 8100. The Veteran outlined that she experiences severe migraines. Her headache pain is productive of nausea, vomiting, sensitivity to light and sound, vision changes, sensory changes, and smell and touch distortions. She has pain on both sides of her head that will travel behind her eyes, along the base of her neck and from the front and back of her head. She takes medication to control her symptoms, but on average experiences chronic migraines 2-3 times a week. Each migraine episode lasts about 1-2 days. See VA examinations. She must lay down and avoid stimuli during a migraine attack. Throughout the appeal period, she contends that her migraines interfere with her ability to remain employed. See March 2016 VA examination. She maintained a headache diary which shows that she experienced prostrating headaches 10-14 days each month. The November 2018 VA opined that the Veteran experienced severe prostrating migraine attacks resulting in economic inadaptability. The Veteran is competent to report her readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements regarding the severity of her migraine symptoms are also credible as they are consistent with the VA examiner's findings and other medical evidence of record. Because the evidence shows that the Veteran has frequent prostrating migraine attacks affecting her economic inadaptability, the Board finds a 50 percent rating is warranted. Swain, 27 Vet. App. at 224. REASONS FOR REMAND Lumbar Spine The Veteran seeks an increased rating for her lumbar spine disability. She experiences flare ups of her lumbar spine disability. The VA examinations of record outline the Veteran's symptoms, functional loss, and range of motion. However, remand is warranted because these VA examinations are inadequate regarding the flareup opinion. More specifically, the United States Court of Appeals for Veterans Claims (Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. As a result, remand is warranted for new VA examinations to assess the current nature and severity of the Veteran's lumbar spine disability. TDIU As to the issue of entitlement to a TDIU, the claim being remanded here, entitlement to an increased evaluation for a lumbar spine disability is inextricably intertwined with the Veteran's claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, remand is also warranted for the Veteran's TDIU claim. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the current nature and severity of the lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Continued on Next Page After the above development, and any other development deemed necessary, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.