Citation Nr: 21008885 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-63 163 DATE: February 18, 2021 ORDER An initial compensable rating for service-connected tension headaches is denied. An initial evaluation for service-connected posttraumatic stress disorder (PTSD) in excess of 30 percent prior to March 7, 2016 is denied. An initial staged rating for PTSD in excess of 30 percent from May 1, 2016 through September 15, 2019 is denied. An initial staged rating of 70 percent for PTSD from September 16, 2019 through February 25, 2020 is granted. An initial staged rating in excess of 70 percent for PTSD from September 16, 2019 is denied. FINDINGS OF FACT 1. The Veteran's tension headaches are not with characteristic prostrating attacks averaging one in 2 months over the last several months, or occurring on average once a month over the last several months, or with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Prior to March 7, 2016, and from May 1, 2016 through September 15, 2019, the Veteran’s PTSD was not productive of occupational and social impairment with reduced reliability and productivity. 3. From September 16, 2019 the Veteran’s PTSD is productive of occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for tension headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2020). 2. The criteria for a rating in excess of 30 percent for PTSD prior to March 7, 2016, and from May 1, 2016 through September 15, 2019, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 3. The criteria for a rating of 70 percent for PTSD from September 16, 2019 through February 25, 2020 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). 4. The criteria for a rating in excess of 70 percent for PTSD from September 16, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to March 1984 and from January 1989 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in January 2020. The Veteran appeared before the undersigned Veterans Law Judge in September 2019 and delivered sworn testimony via video conference hearing in Muskogee, Oklahoma. In the prior Board remand, the Board remanded the issue of entitlement to service connection for left ear hearing loss. In a June 2020 rating decision, the RO granted service connection for that disability. Accordingly, that issue is no longer on appeal and is not addressed herein. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in September 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased evaluations for headaches and PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2020). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2020). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2020). Headaches The Veteran’s headaches are evaluated under Diagnostic Code 8100. For migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation is assigned. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating” but by way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), “prostration” is defined as “extreme exhaustion or powerlessness.” VA treatment records dated from 2013 through 2020, other than a 2016 record which noted occasional headaches, do not contain any complaints of headaches. A May 2015 RO decision granted the Veteran service connection for tension headaches and assigned a noncompensable disability rating, effective July 17, 2014. A January 2015 VA headaches examination revealed a diagnosis of tension headaches. The Veteran had pulsating or throbbing head pain localized to one side of the head and sometimes had blurred vision. The pain would last less than 1 day. The Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran's headache condition did not impact his ability to work. At the September 2019 Board hearing the Veteran indicated that he was having headaches every other day and had been doing so for the prior three years. He would deal with the headaches by sitting in a chair and closing his eyes. The headaches would sometimes last 35 to 45 minutes and would make him irritable and unwilling to associate with anybody. A March 2020 VA headaches examination revealed a diagnosis of tension headaches. The Veteran had pain on both sides of the head with no other symptoms associated with his headaches. The pain would last less than 1 day and were located on both sides of the head. The Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran's headache condition did not impact his ability to work. The Board finds that an initial compensable rating for tension headaches is not warranted as the evidence of record does not show a finding of headaches with characteristics of prostrating attacks. During the Veteran's VA headaches examinations, headache pain symptoms and non-migraine headache pain symptoms associated with headaches were reported to the examiner, but the examiner did not assess that they were characteristic of prostrating attacks of migraine headache pain, or prostrating attacks of non-migraine headache pain. The examiner also assessed that headaches were not related to other pertinent physical findings, complications, conditions, signs, and/or symptoms; and that headaches did not impact the Veteran's ability to work. These findings are supported by the lack of headaches complaints in the VA treatment records. Accordingly, the Board finds that the Veteran's headaches are not of the character, frequency, or severity to warrant an initial compensable rating. Although the Board has considered the Veteran's competent lay statements, the examiners also considered these statements and found that there were no headaches with characteristic prostrating attacks. The Board has considered whether referral for extraschedular consideration is indicated by the record. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2020). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. Here, the Veteran did not assert any symptoms not contemplated by the relevant code. The symptoms reported by the Veteran included primarily pain, with some blurred vision noted. Headaches are assessed as prostrating attacks–which include all symptoms that could manifest in exhaustion or powerlessness. Accordingly, referral for extraschedular ratings is not warranted here. PTSD A 50 percent rating for PTSD will be assigned when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 for names of close relatives, own occupation or own name. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In a May 2015 RO decision granted the Veteran service connection for PTSD and assigned a 30 percent rating, effective July 17, 2014. An April 2016 RO decision assigned a temporary evaluation of 100 percent for PTSD from March 7, 2016 through April 30, 2016, and assigned a rating of 30 percent from May 1, 2016. A June 2020 RO decision increased the Veteran’s PTSD disability rating to 70 percent, effective February 26, 2020. At a January 2015 VA PTSD examination the Veteran was diagnosed with PTSD that was productive of 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. The Veteran saw his parents three or four times a week and always on Sunday since they went to church together. He has an “ok” relationship with his 37-year-old son. He spoke with his siblings every day, and sees his brothers at least once per week. The Veteran married for the 4th time in 1998 with the marriage lasting until his wife’s death in 2014. The Veteran had current relationship with several of his stepchildren. He was not in a current relationship as he was still grieving the death of his fourth wife. He had some friends and one very close friend he has known for about 30 years. He had one military “buddy” that lives across town that he stays in touch with. The Veteran was not working and lived alone in a retirement community. He spent his time talking with his children, helping care for his grandchildren, and would also fish. He was training to be a deacon at his church. He was last employed in 2014 and left because he was unable to drive trucks anymore after a supervisory level staff member reported she had seen him injecting insulin. He reported having had no problems with performing his job duties, but he had difficulty getting along with co-workers and supervisors. He does not attend large events because he does not like b ing around people. He reported being independent in his activities of dialing living. At the examination the Veteran complained of loneliness, grief associated with the death of his wife last year, depression, and anger. He reported intrusive thoughts and memories, frequent nightmares, flashbacks, psychological and physiological reactivity, and avoidance of thinking about, talking about and being near reminders of his military stressors. He reported difficulty remembering key aspects about his military service, and had strong negative beliefs bout self, others and the world. He noted loss of interest in most activities he used to enjoy and felt distant or detached from others. Arousal symptoms included irritability, hypervigilance, an exaggerated startle reaction, difficulty concentrating, and sleep disturbance. His sleep was described as restless and fitful with nightmares with combat content occurring at least every other night. His mood was variable and he had days when he felt so depressed that he did not get out of bed. Suicidal and homicidal ideations were denied and he had no serious problems with anxiety. His concentration was described as somewhat impaired and he was easily distracted and had some problems with respect to short-term memory. There were no psychotic symptoms, manic/hypomanic episodes, or obsessive-compulsive behaviors. The examiner noted symptoms of depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was well-groomed and his mood was euthymic while his affect was broad and engaging. His speech was normal and his language use skills were good. Intellectual functioning was deemed to be in the average range with mild deficits noted in his fund of information. Insight, verbal reasoning, abstract thinking, mental arithmetic computation and judgment were all basically intact. Memory was slightly impaired with mild deficits noted in immediate recall and short-term components. Attention, focus, and concentration were within normal limits and he was able to spell a simple five letter word forwards and backwards and to perform Serial 7s correctly. Thought processes were logical, organized and goal directed with no problems noted in loosening of associations, flight of ideas, ideas of reference, tangentiality, or circumstantiality. The Veteran denied the presence of hallucinations, delusions, illusions, paranoia, and other psychotic manifestations, and none were observed or suspected during the examination. The Veteran further denied the presence of suicidal and homicidal ideation and intent. The Veteran’s psychological testing results (MMPI2) were “considered to be of extremely questionable” validity. VA mental health notes dated in September 2016 and November 2016 revealed that the Veteran felt unsettled and was having difficulties with his relatives and living in a new city. At the September 16, 2019 Board hearing the Veteran indicated that ever since his wife died he had liked living by himself and did not want to go to family gatherings but, if he did, he would stay away from everybody. He indicated that he could no longer drive tractor-trailers due to his diabetes. He would try to go shopping when there were less people around. The Veteran would go fishing by himself and he had “dismissed” his friends. The prior two months the Veteran had been having nightmares every night. He would sometimes forget the names of his grandchildren and he would sometimes forget what he was saying when talking to someone. He had also tried to keep to himself when he had worked as a forklift driver. At a February 26, 2020 VA PTSD examination the Veteran’s PTSD was characterized as being productive of occupational and social impairment with deficiencies in most areas. The Veteran indicated that he had moved to Oklahoma in 2016 and got married. His wife died in 2018 and he had lived alone since that time. He indicated that he had undergone mental health treatment in “a couple” of years. He denied suicidal ideation. The Veteran’s PTSD symptoms were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was casually dressed and groomed and had no gross memory deficits noted. His thought content was appropriately varied and his thought processes were logical and sequential. His affect was extremely anxious and the Veteran was open and cooperative during the interview and responded to all questions effectively. It was noted that the Veteran was able to manage his financial affairs and he did not pose any threat of danger or injury to self or others. Entitlement to a rating in excess of 30 percent for PTSD prior to March 7, 2016 and entitlement to a rating in excess of 30 percent for PTSD from May 1, 2016 through February 25, 2020 The Board finds that prior to the September 16, 2019 Board hearing, the Veteran’s PTSD was not productive of occupational and social impairment with reduced reliability and productivity. First, although the Veteran reported some difficulties with his relatives, he also remained involved in the lives of his parents, siblings, children and grandchildren. The Veteran indicated that he had some friends and was even training to be a deacon at his church. This does not more nearly approximately difficulty in establishing and maintaining effective relationships. Furthermore, the evidence indicates that although the Veteran’s memory was slightly impaired, attention, focus, and concentration were within normal limits. Further, thought processes were logical, organized and goal directed. The Veteran denied hallucinations, delusions, and suicidal and homicidal ideation and intent. The Veteran did report some difficulty getting along with co-workers and supervisors, but stated that he had no problems with performing his job duties. The Veteran’s remaining symptoms do not rise to the level, frequency, or severity of symptoms such as a flattened affect, circumstantial, circumlocutory, or stereotyped speech, or difficulty in understanding complex commands. As such, a rating in excess of 30 percent for PTSD prior to March 7, 2016 and from May 1, 2016 through September 15, 2019 is not warranted. September 16, 2019 through February 25, 2020 The Board finds that the Veteran’s September 16, 2019 Board hearing testimony is essentially similar to the findings from the February 25, 2020 VA PTSD examination. In this regard, the Veteran reported increasing social isolation and his decreasing desire to attend family functions. He also appeared to be experiencing worsening nightmares and some memory deficits. In sum, such findings approximate or equal occupational and social impairment with deficiencies in most areas. As such, a rating of 70 percent for PTSD from September 16, 2019 to February 25, 2020, is warranted. From September 16, 2019 The Board finds that although the evidence shows severe impairment, it does not demonstrate total social and occupational impairment. No examiner, or even the Veteran himself, has asserted that he has total impairment. There has not been a pattern of grossly inappropriate behavior. Further, the Veteran has been shown to be fully oriented and a lack of hygiene has not been presented. Records indicate that the Veteran has at least some relationship with his family members. Although difficulty in establishing and maintaining effective social relationships is shown, the Veteran’s symptoms of PTSD are not of similar severity, frequency, and duration to show total social impairment. Based on the foregoing, a rating in excess of 70 percent for PTSD from September 16, 2019 is not warranted. Conclusion The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit even more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.