Citation Nr: 21076527 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 11-16 672 DATE: December 27, 2021 REMANDED Entitlement to a rating in excess of 50 percent for major depressive disorder since November 23, 2015 is remanded. Entitlement to service connection for migraines, including secondary to already determined to be service-connected disabilities, also is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to January 1994. On her February 2016 VA Form 9, Substantive Appeal to the Board, the Veteran requested a videoconference hearing before the Board. However, in January 2017 correspondence from her through her representative, she withdrew her hearing request. These claims were previously before the Board in March 2018 but were remanded back to the local Regional Office (RO) (Agency of Original Jurisdiction (AOJ)) for further development and consideration including to obtain updated treatment records relevant to these claims and to have the Veteran undergo VA examinations for needed medical opinions concerning the origins of her migraines and to reassess the severity of her service-connected major depressive disorder. In May 2019, following RO (AOJ) compliance with the directives of that remand, the Board denied these claims. However, in August 2019, the Board vacated that decision because in the interim the Veteran had submitted a motion requesting more time to submit additional evidence and/or argument to the Board in support of her claims; but, due to processing time, her extension request was not acknowledged until after the Board had issued its decision. She since has been given the time she wanted to submit additional evidence and/or argument. (An additional claim of entitlement to a higher rating for a low back disability namely, for intervertebral disc syndrome (IVDS), also was previously before the Board in the prior "legacy" system; however, the Veteran since has opted into the modernized review system, also known as the Appeals Modernization Act (AMA), so the Board does not currently have jurisdiction over this other claim.) REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for major depressive disorder (formerly coded as adjustment disorder with mixed anxiety and depressed mood) associated with IVDS from November 23, 2015 is remanded. The Veteran wants a rating of "at least 70 percent" for her mental disorder. The most recent VA examination concerning the status of her mental health was in September 2018, when she reported that, although she had experienced stress at work, she denied experiencing any performance issues or receiving any negative performance appraisals. After evaluating her, the examiner found that her symptoms were best summarized as causing 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 behavior, self-care, and conversation; this level of impairment correlates to a 30 percent rating, so to a rating less than she currently has. In a more recent April 2020 Statement in Support of Claim (on VA Form 21-4138), the Veteran asserted that, in addition to many symptoms, for over a year she spends her weekends in bed and does not bathe or brush her teeth. She also stated that she stopped driving because she gets road rage. Also, on another April 2020 VA Form 21-4138, so that same month, the Veteran's spouse (M.W.) indicated the Veteran has said "some very shocking and eye opening things" about wanting to hurt people and even killing him (to include by chopping off his head), and that statements were made during a counseling session for him. (The Board sees the Veteran has stated that M.W. has posttraumatic stress disorder (PTSD), and in an April 2011 statement the Veteran asserted that he consequently is easily irritated, moody, depressed, distant, and had "started plotting bad things concerning his family"; thus, he himself appears to have mental health issues aside from hers). M.W. also stated that the Veteran has kicked him in anger, will "explode with anger", has wanted to hurt people, is a germaphobe, and wants to kill herself. As well, he added that, when she comes home every evening, she makes threatening comments about people at her job. On yet another April 2020 VA Form 21-4138, so also from that same month, D.S. (who identified herself as a friend of the Veteran and former co-worker) stated that the Veteran is obsessive about germs, has told her she wanted to punch people on the bus when they breathed on her, could not handle the stress of work or driving, had "screaming matches at work" with supervisors, and had "confrontations with managers". Despite those recollections, an even more recent October 2021 VA Form 28-1902w (Rehabilitation Needs Inventory) reflects that the Veteran had changed positions in March 2019 because of a "promotion", which is incongruous when considering the buddy statements from M.W. and D.S. regarding her behavior. Moreover, an October 2021 VA Form 28-1902b (Counseling Record-Narrative Report) for vocational rehabilitation purposes shows the Veteran has been working for the same employer since 2015, has received promotions throughout her employment, currently works from home (tele-work), and has been consistently engaged in the same career "with no difficulties". Because of this conflicting evidence, another VA examination and opinion are needed to reconcile the assertions of the Veteran contrarily not being able to handle the stress of work versus the assessment that she had "no difficulty at work" and even was promoted during the rating period under review. To this end, the examiner should also assess the Veteran's current level of severity of her acquired psychiatric disability as it may have changed since the 2018 examination, including when considering that she now reportedly works from home. In addition, work records (e.g., evaluations) may be useful and should be obtained. The most recent VA treatment records are from December 2019, so from two years ago; thus, updated records also should be obtained and associated with the claims file so that they, too, may be considered in deciding this appeal. Finally, mental health counseling records for M.W., as the primary patient but with the Veteran attending sessions and making statements in question, may be useful, and if M.W. authorizes it, VA should additionally attempt to obtain these other records also. 2. Entitlement to service connection for migraines, including as secondary to service-connected disabilities, is remanded. The Veteran is in receipt of service connection for major depressive disorder, IVDS, diabetes, bilateral (left and right) upper extremity peripheral neuropathy, and bilateral lower extremity peripheral neuropathy. She contends that she has a headache disability specifically, migraines, that is directly related to her service and/or secondary to a service-connected disability. Regarding the theory of direct incurrence, a September 2018 VA examiner concluded the Veteran's migraines are not at least as likely as not related to any injury, event, or disease during her service including to the headaches she experienced intermittently while in service. The rationale was that her headaches in service were transient in nature, as opposed to chronic, and were associated with other complaints (e.g., a viral illness). Further, the examiner pointed out there was no evidence of a chronic headache disability in the Veteran's service treatment records (STRs). In alleging an alternative basis of entitlement (i.e., secondary service-connection), the Veteran has contended that, when her blood sugar is regulated to control her diabetes, she begins to have migraines (conversely, she asserts that, when her blood sugars are uncontrolled, she does not suffer from migraines), and that sugar levels lower than 130 cause her to have migraines all day (see, e.g., May 2010, March 2012, and January 2019 VA records). In an August 2018 Disability Benefits Questionnaire (DBQ), the VA examiner opined that the Veteran's migraines are less likely than not related to her diabetes (including to the medicine used to treat it) and, instead, are more likely from primary neuronal dysfunction that leads to a sequence of changes intracranially and extracranially that account for her migraine headaches). The Veteran also has contended that her headache/migraine disability is due to, or aggravated by, stress and/or pain owing to a service-connected disability(ies). It is on this latter basis that this claim must be further developed to obtain a medical opinion regarding this additionally posited possibility. VA treatment records show the Veteran has offered several etiologies for her headaches. She has blamed her headaches or a worsening of them on stress (see, e.g., August, October, and December 2009, October 2012, and July and August 2013 records). In an April 2020 statement, her husband explained that sometimes the Veteran will get a "migraine from being so upset." DBQs reflect that she suffers from major depressive disorder and that one of the symptoms is difficulty adapting to stressful circumstances. The Veteran also has maintained that her headaches are related to her non-service-connected left shoulder disability and neck pain (see, e.g., April 2010, May 2013, January, February, June, and August 2014 records). As well, the Veteran has stated that she wakes up with migraine headaches (May 2011) and has wondered whether they are due to non-service-connected pelvic pain and bleeding from fibroids (December 2009). Finally, as for headaches and her low back disability, there are VA treatment records noting back pain and headache pain, but also records noting back pain when she denied a headache (see, e.g., January 2006, July 2001, August 2013, September 2016, and March 2019 VA records, and September 2016 private record for the spine). On her April 2020 VA Form 21-4138, she asserted that "the back pain is so severe now that I get migraines 3-4 times a week due to the pain in my back." According to 38 C.F.R. § 3.310, service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability although in the latter instance compensation is limited to the disability specifically owing to the aggravation. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). As already alluded to, when discussing the Veteran's diabetes, the August 2018 DBQ examiner determined the Veteran's headaches are more likely due to primary neuronal dysfunction leading to a sequence of changes intracranially and extracranially that account for them. But an addendum opinion is needed further discussing this notion of "primary neuronal dysfunction" and whether there is any relationship to stress and/or back pain. Accordingly, the claims are REMANDED for the following action: 1. Obtain updated VA treatment records, assuming there are some to obtain. 2. If willing, ask the Veteran to have her spouse (M.W.) complete an authorization form (VA Form 21-4142) so that VA may obtain the records of his mental health counseling during which the Veteran accompanied him and reportedly made disparaging statements regarding her mental health (e.g., her hostility). 3. Ask the Veteran to complete an authorization form for VA to obtain her employment evaluations from 2015 to the present or, if amenable, she may provide them herself. 4. After receiving all mental health, employment, and other relevant records, schedule the Veteran for an examination by a psychiatrist or psychologist to ascertain the current severity of her service-connected acquired psychiatric disability. To this end, the examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating it under the applicable rating criteria. In his/her assessment, the examiner should consider the pertinent evidence of record, including: a) VA clinical records; b) the April 2020 lay statements; c) the October 2021 VA Form 28-1902w (Rehabilitation Needs Inventory); and d) the October 2021 VA Form 28-1902b (Counseling Record-Narrative Report) for vocational rehabilitation. 5. Obtain an addendum clinical opinion (by a neurologist if reasonably available) to the August 2018 DBQ as to whether it is as likely as not (50 percent or greater probability) the Veteran has a migraine disability that is caused OR aggravated by a service-connected disability especially her acquired psychiatric disability (MDD) and/or low back disability (IVDS). The examiner must consider the pertinent evidence of record, including: a) that the Veteran has asserted numerous etiologies for her headaches, as noted in the VA clinical records (e.g., neck pain, shoulder pain, back pain, sugar levels, stress, fibroids); b) the August 2018 DBQ; c) the April 2020 statement by the Veteran's spouse that the Veteran gets so upset she sometimes gets a headache; and d) the April 2020 statement by the Veteran that her back pain is so severe she gets migraines. When considering whether it is as likely as not that the Veteran's service-connected low back (IVDS) or acquired psychiatric disability (MDD) worsens (aggravates) her migraine disability, the commenting clinician should discuss the baseline severity of the migraine disability prior to any aggravation as it compares to the severity after aggravation, if any. Rationale for the opinions therefore is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. More discussion of "primary neuronal dysfunction" and its relationship, if any, to stress and/or back pain may be helpful in deciding this appeal. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.