Citation Nr: A21020455 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 210129-136005 DATE: December 22, 2021 ORDER A rating in excess of 30 percent for migraines is denied. A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with residuals of traumatic brain injury (TBI) is denied. An effective date of February 19, 2019, for the grant of entitlement to total disability based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the award of monetary benefits. An effective date of February 19, 2019, for basic eligibility to Dependents' Educational Assistance (DEA) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's migraine headaches are shown to cause characteristic prostrating attacks of migraine pain "more frequently than once per month;" his migraines are not shown to have been manifested by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability for any distinct period during the course of the appeal. 2. During the entire appeal period, the symptoms and overall impairment caused by the Veteran's PTSD more nearly approximated occupational and social impairment with deficiency in most areas, but at no time have the psychiatric symptoms more nearly approximated total occupational and social impairment. 3. The evidence of record during the one-year period prior to February 19, 2019, does not support that it is factually ascertainable that the Veteran's PTSD with residuals of TBI symptoms had worsened. 4. The Veteran's claim for a TDIU was part of his claims for increased disability ratings for his migraines and PTSD with residuals of TBI received by VA on February 19, 2019. 5. Resolving reasonable doubt in favor of the Veteran, by reason of his service-connected disabilities alone, he was precluded from obtaining or maintaining substantially gainful employment since February 19, 2019. 6. The Veteran is found to have a permanent total service-connected disability based on the TDIU rating assigned above as of February 19, 2019; an earlier effective date for entitlement to DEA benefits is granted. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, 4.124a, Diagnostic Code 8100. 2. The criteria for a disability rating in excess of 70 percent for PTSD with residuals of TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.10 4.130, Diagnostic Code 9411. 3. The criteria for an effective date prior to February 19, 2019, for a 70 percent disability rating for PTSD with residuals of TBI have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an earlier effective date of February 19, 2019, for the grant of a TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an effective date of February 19, 2019, to DEA have been met. 38 U.S.C. §§ 3501, 3510, 5110; 38 C.F.R. §§ 3.400, 3.807(a), 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to February 1969. The Veteran provided testimony at an August 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. This is a complex appeal that is spread over three Board decisions, issued concurrently, and is a product of the appeal of three rating decisions issued in May 2019 (increasing the rating for migraine headaches from 0 to 30 percent and deferring an increased rating for PTSD), in September 2019 (increasing the rating for PTSD from 30 percent to 70 percent as of February 19, 2019), and in January 2021 (granting TDIU and DEA as of October 30, 2019, and readjudicating the increased rating claims for PTSD and migraine headaches). The Veteran filed VA Form 10182s with each rating decision challenging various aspects of the rating decisions. The three Board decisions will address each of the issues appealed in the three Form 10182s. While TDIU is viewed as part of a claim for an increased rating, the claim for TDIU has been granted and thus the issue is the appropriate effective date for it, which is addressed in a separate decision. In this decision, the Board addresses the effective dates for the assignment of TDIU and DEA, as well as increased rating claims for PTSD and migraine headaches. It is noted that the 10182 received in January 2021 in response to the January 6, 2021 rating decision that had continued the ratings for migraine headaches and PTSD listed both increased rating claims on it. While those issues were initially in other appeal streams, the Board will address this issue in the 210129-136005 docket as this allows for a wider appeal period and thus consideration of more evidence. Regarding the issues of entitlement to an increased disability rating in excess of 30 percent for migraines, this issue was granted a 30 percent disability rating by the Agency of Original Jurisdiction (AOJ) in a May 2019 rating decision. The Veteran filed a timely VA Form 10182 Notice of Disagreement in June 2019 and selected the Appeals Modernization Act (AMA) review hearing lane. The issue of an increased disability rating for PTSD with residuals of TBI was granted a 70 percent disability rating, effective February 19, 2019, in a September 2019, rating decision. The Veteran again filed a timely VA Form 10182 Notice of Disagreement in October 2019 and selected the hearing lane. However, following the Veteran's October 2019 claim for entitlement to TDIU, the AOJ readjudicated these increased disability rating claims in a January 2021 rating decision, ultimately continuing the current ratings. This rating decision also granted TDIU and DEA, both effective October 30, 2019. Subsequently, the Veteran submitted another VA Form 10182 Notice of Disagreement to the January 2021 rating decision appealing the disability rating for migraines and PTSD with TBI, and the effective dates of his increased disability ratings for migraines, PTSD with residuals of TBI, TDIU, and DEA. Accordingly, in adjudicating these issues on the merits, the Board is required to consider the evidence of record at the time of AOJ's rating decision of January 2021, evidence submitted by the Veteran at the August 2021 Board hearing, as well as evidence submitted within 90 days following the hearing. 38 C.F.R. § 20.302 (b). The Board recognizes that the Veteran's claims for an increased disability rating for migraines and PTSD with TBI have each been placed on separate AMA dockets based on the VA Form 10182s submitted by the Veteran in June 2019 and October 2019, respectively. Those issues were dismissed in those dockets as it is most beneficial to address them here. Increased Rating Claims 1. An increased rating in excess of 30 percent for migraines The Veteran seeks an increased disability rating in excess of 30 percent for his service-connected migraine headaches. In May 2019, the RO granted an increased disability rating of 30 percent disability rating, effective February 19, 2019, the date of the Veteran's claim for an increase. Under Diagnostic Code (DC) 8100, where migraine headaches occur with characteristic prostrating attacks occurring on an average of once a month over the last several months, a 30 percent disability rating is appropriate. 38 C.F.R. § 4.12a. Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. Id. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The rating criteria do not define "severe economic inadaptability;" however, nothing in DC 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). The Secretary has conceded that the term "productive of economic adaptability" could be read as either "producing" or "capable of producing." Id. at 445. Turning to evidence of record, the Veteran was afforded a VA examination in March 2019 where he reported experiencing a migraine headache approximately 4 times per month, if not more. He stated they lasted for approximately one day and was described as sharp, dull, throbbing, and aching pain at a level of 8 to 10 out of a scale of 10. He was sensitive to light and sound and had nausea. The Veteran's pain was pulsating or throbbing head pain on both sides of the head with nausea and was sensitive to light and sound. Typical head pain lasted a day or two on both sides of the head. He experienced prostrating attacks of migraine pain once every month. He did not have very frequent prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability. In July 2019 the Veteran underwent another VA examination where he stated his migraine headaches lasted approximately one day "very frequent" and "just headaches" that occurred "here or there." The Veteran's pain was pulsating or throbbing head pain on both sides of the head with nausea and with sensitivity to light and sound, which lasted one or two days on both sides of the head. The Veteran had characteristics of prostrating attacks of migraine/non-migraine headache pain which lasted once every month. The Veteran did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The VA examiner noted that the Veteran's migraine headaches may interfere with his ability to work in noisy environments with bright lights. In February 2020, upon review of the evidence of record, a VA examiner noted that the Veteran reported about four headaches per month, each lasting approximately one day. The Veteran's activities during a headache would be limited but on days that the Veteran is not suffering from a severe headache, all activities would be normal. Finally, in October 2020, the Veteran underwent another VA examination where he stated he had one migraine every two weeks that lasted 12 to 14 hours. He reported throbbing or sharp stabbing pain in his head during migraines with nausea and vomiting on a rare occasion. He self-treated with ibuprofen and laying in a dark and quiet room. The Veteran's pain was pulsating or throbbing head pain on both sides of the head and worsened with physical activity. His symptoms included nausea, vomiting, sensitivity to light and sound, and changes in vision. Typical head pain lasted one or two days on both sides of the head. The Veteran had characteristic of prostrating attacks of migraine/non-migraine headache pain approximately once every month. The effective date found that he did not have very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The VA examiner stated his migraines interfered with his ability to work in stressful, loud, or bright environments. The Board finds that the criteria for an evaluation in excess of 30 percent have not been met. The Veteran's testimony at the Board hearing regarding the severity and frequency of his headaches have also been considered. As discussed above, there is evidence that his headaches are frequent, and that at times they are prostrating. However, the evidence is insufficient to show that the Veteran's headaches are "very frequent, completely prostrating and prolonged," productive of severe economic inadaptability. At the August 2021 hearing, the Veteran indicated that the headaches were worsening, and to the extent they are, he is welcome to file a supplemental claim. However, the testimony did not establish that the headaches during the course of the appeal (that is prior to January 2021) caused severe economic inadaptability. The evidence indicates that the Veteran has not worked since about 2014, however, there is no objective evidence to show time lost from work due to headaches, as opposed to other service-connected disabilities. In summary, there is insufficient objective medical or other evidence to show that the Veteran's headaches are of such frequency and severity to meet the criteria for an evaluation in excess of 30 percent under Diagnostic Code 8100. Accordingly, the preponderance of the evidence is against an evaluation in excess of 30 percent at any time during the course of the appeal, and therefore the claim is denied. 2. An increased rating in excess of 70 percent for PTSD with residuals of TBI The Veteran's PTSD with residuals of TBI has been rated under the provisions of Diagnostic Code 8045-9411, using the General Rating Formula for Mental Disorders. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In the case at hand, Diagnostic Code 8045 applies to residuals of TBI, and the hyphenated diagnostic code directs that the disability be rated as PTSD (Diagnostic Code 9411). Under 38 C.F.R. § 4.130, DC 9411, a 70 percent rating is assigned when an acquired psychiatric disability causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: Suicidal ideations; obsessional rituals that 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 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 work-like setting); inability to establish and maintain effective relationships. Id. Under 38 C.F.R. § 4.130, DC 9411, a 100 percent schedular evaluation is warranted when an acquired psychiatric disability causes 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; memory loss of names of close relatives, own occupation, or own name. Id. Although some of the Veteran's recorded symptoms are not specifically provided for in the ratings schedule (e.g., such symptoms as nightmares), the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The Board finds that the criteria for a rating in excess of 70 percent for PTSD with residuals of TBI for the period from February 19, 2019, have not been met. The clinical findings during the relevant time period on appeal, notably the VA examinations do not show that the Veteran's PTSD was manifested by such symptoms as gross impairment in thought processes or communication; persistent delusions, or hallucinations; grossly inappropriate behavior; or persistent danger of hurting self or others. The March 2019 VA examiner determined that the Veteran's level of occupational and social impairment was best described as 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. The September 2020 VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. This does not equate to a 100 percent evaluation under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Notwithstanding the findings of an inability to establish and maintain effective relationships, the Veteran is shown to have been married to his second wife for over four years, and to have a "okay" relationship with family members. He stated he is close to his wife and granddaughter, although he struggles to make and maintain social relationships. He was retired but stated he was focusing on bicycling, home repair, and yard work. The evidence demonstrated he was capable of performing activities of daily living independently. Additionally, the Veteran testified at the Board hearing he will go out shopping with his wife but will not go inside the store. Occasionally, they will go out to eat. As such, at the very least, he cannot be said to be totally socially impaired and totally occupationally impaired. This is not to an effort to minimize the Veteran's difficulty interacting with others or managing his stresses. However, a 70 percent rating contemplates the inability to establish and maintain effective relationships. As such, the Veteran is within the confines of a 70 percent rating, while having significant difficulty with relationships. The Board therefore finds that the Veteran's PTSD symptoms are not of such severity to approximate, or more nearly approximate, the criteria for an evaluation in excess of 70 percent under DC 9411 for the period from February 19, 2019. See 38 C.F.R. § 4.7; Vazquez-Claudio. In summary, there is insufficient evidence of 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; disorientation to time or place; memory loss of names of close relatives, own occupation, or own name; nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. Given the foregoing, the Board finds that the Veteran's PTSD symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 100 percent rating under DC 9411. See 38 C.F.R. § 4.7; Vazquez-Claudio (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). The Board also acknowledges the Veteran's belief that his PTSD symptoms are of such severity as to warrant ratings in excess of 70 percent for the prescribed period on appeal. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Here, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, are more probative than the Veteran's assessment of the severity of his PTSD. The VA examinations also considered the Veteran's competent (subjective) statements with regard to the severity of his PTSD. Regarding suicidal ideation, the United States Court of Appeals for Veterans Claims (Court) in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). However, what is incumbent in this is that the suicidal ideation must be of such severity to impact social and occupational functioning, and in such a way to support the assigment of a higher rating. Here, while the Veteran reported at the March 2019 VA examination of experiencing occasional passive suicidal ideation without a plan, the evidence of record as a whole was overwhelmingly negative for any suicidal or homicidal ideation. Overall, despite this notation, there was no suggestion that it impacted his functioning in a way to support a rating in excess of 70 percent. Furthermore, the Veteran has consistently denied suicidal and homicidal ideation since. In sum, a 100 percent rating requires both total social, and total occupational impairment. Here, and even attributing symptoms from his TBI, the record reflects that the Veteran has acknowledged relationships with his wife and other members of his family, as well as working on hobbies. Thus, the evidence does not support a finding that the Veteran's PTSD with TBI has resulted in total social and total occupational impairment. Accordingly, the preponderance of the evidence is against a rating in excess of 70 percent for the service-connected PTSD with residuals of TBI and the claim is denied. Claims for an Earlier Effective Date 1. An effective date prior to October 30, 2019, for the grant of TDIU The Veteran contends that he is entitled to an earlier effective date of October 30, 2019, for the grant of a TDIU. The effective date of October 30, 2019, was assigned as it was the date the Veteran submitted his claim for TDIU. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In Rice v. Shinseki, 22 Vet. App. 447, 453, 455 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when an appellant appeals the initial disability rating for a service-connected disability and also submits evidence of unemployability, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is also warranted. Thus, as the issue of entitlement to TDIU in the context of an increased rating claim may be co-extensive with that claim in terms of the time period under review, the effective date of TDIU may be as early as the effective date applicable to the increased rating claim under 38 C.F.R. § 3.400 (o). See Rice, 22 Vet. App. at 454. Here, the Board finds that the underlying TDIU is part and parcel of the Veteran's formal claim for an increased rating for the service-connected migraines and PTSD with residuals of TBI, received by VA on February 19, 2019. Thus, the earliest possible effective date for the Veteran's TDIU claim is the date of his underlying claim for an increased rating for migraines and PTSD with residuals of TBI. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The earliest claim specifically and directly seeking TDIU was October 2019 which formed the basis for the effective date that was assigned; however, that claim was made in part based on the service-connected migraine disability and PTSD with residuals of TBI and can be extended back to the time of the filing of the claim for a higher rating for these disabilities that was pending in October 2019. Rice, 22 Vet. App. 447. That claim was received on February 19, 2019. The evidence indicates that as of February 19, 2019, the Veteran met the schedular criteria under 38 C.F.R. § 4.16, was not employed, and that he was unemployable as a result of his service-connected disabilities. Thus, affording the Veteran the benefit of doubt, the proper effective date for the grant of a TDIU is February 19, 2019. The Board recognizes the Veteran's claim that he has not worked since 2014 and therefore, his TDIU should be as early as that time. It is also noted that the Veteran's claim for an earlier effective date for TDIU is also active on the Board's legacy docket as it was also part and parcel of his claim for an increased disability rating for bilateral hearing loss, currently under additional development pursuant to the Board's August 2021 remand. Therefore, the Board will defer decision on whether the Veteran's TDIU warrants and earlier effective date prior to February 19, 2019, to the legacy docket. However, based on the evidence of record available in this particular claim stream, an effective date earlier than February 2019 is not available. 2. An effective date prior to October 30, 2019, for establishment of basic eligibility to DEA For the purposes of entitlement to DEA benefits under 38 U.S.C. Chapter 35, where a veteran was discharged from service under conditions other than dishonorable and has or had a permanent total service-connected disability, a program of education or special restorative training may be authorized for an eligible dependent. 38 C.F.R. §§ 3.807, 21.3020. As such, the issue of an earlier effective date for DEA benefits is inextricably intertwined with the claim for an earlier effective date for a TDIU rating adjudicated above. Accordingly, the new effective date assigned for the Veteran's TDIU rating, February 19, 2019, will also become the new effective date for DEA entitlement. The appeal is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.