Citation Nr: 21009055 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-21 558 DATE: February 18, 2021 ORDER From October 10, 2013, forward, a 100 percent rating for service-connected posttraumatic stress disorder (PTSD) with depressed mood and traumatic brain injury (TBI) with cognitive disorder (PTSD/TBI) is granted. From October 10, 2013, to September 21, 2015, a 50 percent rating for service-connected migraines headaches due to TBI is granted. From October 10, 2013, to October 9, 2014, entitlement to special monthly compensation at the housebound rate is granted. REMANDED Entitlement to a rating in excess of 10 percent for service-connected lumbar spine stenosis with intervertebral disc syndrome (IVDS) is remanded. FINDINGS OF FACT 1. From October 10, 2013, forward, the Veteran’s service-connected PTSD/TBI was manifested by total occupational and social impairment due to such symptoms as persistent delusions or hallucinations, persistent danger of hurting self or others, and memory loss for names. 2. From October 10, 2013, to September 21, 2015, the Veteran’s service-connected migraines headaches due to TBI were manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From October 10, 2013, to October 9, 2014, the Veteran has additional service-connected disabilities independently ratable at 60 percent and is in receipt of a single service-connected disability rated as 100 percent. CONCLUSIONS OF LAW 1. The criteria for a rating of 100 percent for service-connected PTSD/TBI have been met, from October 10, 2013, forward. 38 U.S.C. §§ 1155, 5107, 5110 (b)(2); 38 C.F.R. §§ 3.400 (o)(2), 4.1, 4.3, 4.7, 4.14, 4.130; Diagnostic Code (DC) 9411. 2. The criteria for a rating of 50 percent for service-connected migraines headaches due to TBI, have been met from October 10, 2013 to September 21, 2015. 38 U.S.C. §§ 1155, 5107, 5110(b)(2); 38 C.F.R. §§ 3.400 (o)(2), 4.1, 4.3, 4.7, 4.14, 4.124 (a), DC 8100. 3. The criteria for entitlement to special monthly compensation at the housebound rate have been met, from October 10, 2013, to October 9, 2014. 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2008 to May 2010. In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board). A transcript of the hearing has been associated with the claims file. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two ratings are potentially applicable, the higher rating will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the rating of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Veteran bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of increased rating claims, as is the case here, is from one year before the claim was filed; in this case, October 10, 2013, one year prior to the Veteran’s October 10, 2014, claim, until VA makes a final decision on the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). 1. Entitlement to a rating in excess of 70 percent for service-connected PTSD/TBI. The Veteran asserts, during his November 2020 Board hearing, that his service-connected PTSD/TBI warrants a 100 percent rating on this basis that he has hallucinations and delusions and trouble remembering names, as well as difficulties with anger and getting into trouble, finding himself under attack. The Veteran’s service-connected PTSD/TBI is currently evaluated under DC 9411 as 70 percent disabling from May 4, 2010, the date of his award of service connection, forward. See 38 C.F.R. § 4.130, DC 9411. He did not appeal the December 2010 rating decision that awarded service connection for PTSD and assigned the initial rating. Accordingly, that rating decision became final. See 38 U.S.C. § 7105. A Date of Contact dated November 29, 2012, notes that the Veteran called the RO stating that he wanted to file for an increase in compensation. He reported that he had been receiving treatment at two VA Medical Centers in San Diego. He was advised to send medical evidence, but indicated that he did not have any private treatment records. The Veteran was sent a VA Form 21-4138, Statement in Support of Claim. However, he did not return the form. Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). At the time the Veteran contacted the RO on November 29, 2012, he was service connected for nine disabilities. As he did not identify the benefit sought, that is, the specific disability or disabilities for which he was seeking an increased rating, either during the telephone conversation or by returning the VA Form 21-4138, Statement in Support of Claim, the Date of Contact dated November 29, 2012, does not constitute a claim for an increased rating for his PTSD/TBI. See 38 C.F.R. § 3.155(a) (2014). The Veteran submitted a claim for an increased rating for his PTSD/TBI on October 10, 2014. See VA Form 21-8940, received on October 10, 2014. Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. As the Board herein grants a 100 percent rating for the Veteran’s service-connected PTSD/TBI for the entire appellate period, further discussion as to whether his symptoms may be evaluated more favorably considering the rating criteria contemplating TBI is not required. Under the General Rating Formula, as pertinent to the present appeal, a 70 percent rating requires 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 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 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); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Federal Circuit recently clarified that the General Rating Formula for Mental Disorders requires not only: (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency or duration; but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran requested VA anger management treatment in February 2014. During VA treatment in March 2014, the Veteran described a scenario wherein he was attacked by four men after an altercation involving his dog and used a steak knife to defend himself resulting in him being arrested and charged with assault with a deadly weapon. He weas tearful, hypervigilant, and irritable. In an April 2015 Disability Benefits Questionnaire (DBQ), the examiner reported that the Veteran’s symptoms of PTSD and TBI overlapped; that it was not possible to attribute his impairment to either disability. The Veteran reported that he was separated from his wife, that he lives alone. He reported that he is bothered by auditory hallucinations, that he hears voices and cannot remember what they say, and that he is bothered by visual hallucinations, that he sees what appear as moving shadows. He endorsed increased suicidality, without plan. He described a scenario noted above, resulting in being arrested and charged with assault with a deadly weapon. He presented with chronic sleep impairment, depressed mood, anxiety, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and a dysphoric affect. In a September 2015 DBQ, the examiner reported that the Veteran’s symptoms from multiple mental health diagnoses overlap and exacerbate each other and that most of his psychiatric problems are due to his PTSD. The examiner also reported that most of the Veteran’s subjective reports of cognitive problems and impairment are related to his PTSD and not his TBI. The Veteran reported that he lived with his soon-to-be former wife and mother, with both of whom he has problems, and his infant daughter. He reported that he had not done the things he promised to do as a father. He reported that he gambled and drank alcohol to escape his problems. He reported that he was still in school, that it was not going well, and he had passed some courses and failed others, and that he had been fired from work-study jobs. He complained of trouble with memory, depression sleep, excessive worry, anxiety, nightmares, exaggerated startle, anger, flashbacks, passive suicidal thoughts, and vigilant symptoms, symptoms ongoing for the past two and one-half years. He described being isolated, without friends. He had no thought process or communication impairment, there were no delusions or hallucinations, or suicidal or homicidal ideation. He was oriented, with memory loss such as forgetting names, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, anhedonia, suspiciousness,, anxiety and depression with crying spells, and impaired impulse control such as unprovoked irritability with periods of violence. He did not have abnormal speech, obsessive or ritualistic behavior, or panic attacks. He was easily angered and had problems with impulse control and reported that he was aggressive when driving and avoided stores because he was irritable and easily angered. He reported that he had been arrested twice, once for domestic violence with his wife and once for the scenario noted above, resulting in being arrested and charged with assault with a deadly weapon. The examiner found that the Veteran’s mood was persistently dysphoric and that his judgment and thinking were affected by his irritability. The Veteran’s auditory and visual hallucinations, of which he complained during his April 2015 DBQ and November 2020 Board hearing, were not discussed in his September 2015 DBQ and do not appear to have been noted during instances of VA treatment. Also, his memory loss for names noted in the September 2015 DBQ was not noted in the April 2015 DBQ. In essence, some of the symptoms upon which the Board bases the grant herein of the 100 percent rating were found reported in one DBQ and not the other or were not specifically reported during VA treatment. The Board, however, resolving all doubt in favor of the Veteran, finds his disability picture, considering the severity, frequency or duration of his symptoms, including persistent delusions or hallucinations, persistent danger of hurting self or others, and memory loss for names, was present during the entire appellate period, effective October 10, 2013. Accordingly, given the evidence of symptoms including persistent delusions or hallucinations, persistent danger of hurting self or others, and memory loss for names, symptoms contemplated by DC 9411 for a 100 percent rating, the Board finds that, during the entire appellate period, effective October 10, 2013, the Veteran’s service-connected PTSD/TBI resulted in total occupational and social impairment and warrants a 100 percent rating; the claim is granted. 38 C.F.R. §§ 4.7, 4.130, DC 9411. 2. Entitlement to a compensable rating for service-connected migraines headaches due to TBI prior to September 22, 2015. The Veteran asserts, during his November 2020 Board hearing, that his service-connected migraine headaches due to TBI warrant the maximum rating, 50 percent, the rating currently in place, for the entire appellate period as opposed to the period dated September 22, 2015, the date of his DBQ demonstrating more severe symptoms. During the hearing, he reported that he had the same headache symptoms since separation from service, that such have been prostrating, that he has had to be “legs up” during his headaches. The Veteran’s service-connected migraine headaches due to TBI are currently evaluated under DC 8100 as 50 percent disabling from September 22, 2015, forward, and noncompensably disabling since May 4, 2010, the date of his award of service connection. See 38 C.F.R. § 4.124a, DC 8100. He did not appeal the December 2010 rating decision that awarded service connection for headaches and assigned the initial, noncompensable rating. Accordingly, that rating decision became final. See 38 U.S.C. § 7105. A Date of Contact dated November 29, 2012, notes that the Veteran called the RO stating that he wanted to file for an increase in compensation. He reported that he had been receiving treatment at two VA Medical Centers in San Diego. He was advised to send medical evidence, but indicated that he did not have any private treatment records. The Veteran was sent a VA Form 21-4138, Statement in Support of Claim. However, he did not return the form. As noted above, effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). At the time the Veteran contacted the RO on November 29, 2012, he was service connected for nine disabilities. As he did not identify the benefit sought, that is, the specific disability or disabilities for which he was seeking an increased rating, either during the telephone conversation or by returning the VA Form 21-4138, Statement in Support of Claim, the Date of Contact dated November 29, 2012, does not constitute a claim for an increased rating for his headaches. See 38 C.F.R. § 3.155(a) (2014). The Veteran submitted a claim for an increased rating for his headaches on October 10, 2014. See VA Form 21-8940, received on October 10, 2014. Under DC 8100, in pertinent part, a maximum 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. The Rating Schedule does not define “prostrating.” “Prostration” has been defined as “complete physical or mental exhaustion.” Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007). “Prostration” has also been defined as “extreme exhaustion or powerlessness.” Dorland’s Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman’s Medical Dictionary, 27th Edition (2000), p. 1461, “prostration” is defined as “a marked loss of strength, as in exhaustion.” See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (the Board adopts the Court’s definition as its own). Additionally, the phrase “productive of severe economic adaptability” has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to a TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing “severe” economic inadaptability. VA treatment records dated in February 2014 indicate that the Veteran reported headaches with light sensitivity and blurry vision, and during VA treatment in June 2014, he reported chronic daily headaches. In an April 2015 DBQ, the Veteran reported constant head pain, pain on both sides of his head, sensitivity to light and sound, a sensation of pressure across his head with tinnitus, for which service-connection is in effect, pain rated as a nine on a ten-point pain scale, and the use of medication. He reported that he had his headaches five times each week, for two hours each. The examiner did not report characteristic prostrating attacks and reported that the Veteran’s headaches would impair sedentary activities of employment such as concentration and interaction. In a September 2015 DBQ, the Veteran reported that since 2008, he had headaches four or five times each week, lasting for two hours, over the left parietal area and middle of his head. He reported that he had to lie down with all of his headaches. He reported the use of medication and described his headaches as constant head pain, localized to one side, worse with physical activity, and manifested by sensitivity to light and sound. The examiner reported that there were characteristic prostrating attacks, once every month, and very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board cannot explain why the examiner, in the September 2015 DBQ, found very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, and the examiner, in the April 2015 DBQ, did not. The Veteran’s headaches symptoms were reported in a very similar fashion, save for his report of left-sided and middle head pain and the need to lie down with all of his headaches in the September 2015 DBQ. The Veteran, during his November 2020 Board hearing, specifically reported that his headaches symptoms have remained the same since separation from service. The Board cannot imagine a scenario wherein the Veteran’s headaches were suddenly more severe in the months between the April 2015 DBQ and the September 2015 DBQ, or that they were not as severe prior to the April 2015 DBQ. The Veteran is competent to report that he is “legs up” during his headaches and competent to report that they are prostrating, or productive of complete physical or mental exhaustion; there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. The Board, thus, resolving all doubt in favor of the Veteran, finds his disability picture, of headaches symptoms the same as found in the September 2015 DBQ, very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, was present during the entire appellate period, effective October 10, 2013. Accordingly, given the evidence of headache symptoms resulting in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, as is contemplated by DC 8100 for the maximum 50 percent rating, the Board finds that, from October 10, 2013, to September 21, 2015, the Veteran’s service-connected migraine headaches due to TBI warrant a 50 percent rating; the claim is granted. 38 C.F.R. §§ 4.7, 4.124 (a), DC 8100. To the extent that the Veteran asserts that a rating in excess of 50 percent for headaches is warranted at any time from October 10, 2013, forward, his claim must be denied as 50 percent is the maximum rating allowed for migraine headaches under DC 8100. 3. Entitlement to special monthly compensation at the housebound rate. In September 2017, the RO awarded the Veteran special monthly compensation at the housebound rate, effective October 10, 2014. Special monthly compensation (SMC) at the housebound rate is payable where a Veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i). As the Board herein grants a 100 percent rating for the Veteran’s service-connected PTSD/TBI during the entire appellate period, as of October 10, 2013, as well as an increased rating for his headaches as of October 10, 2013, he has additional service-connected disabilities independently ratable at 60 percent and is in receipt of a single service-connected disability rated as 100 percent. See Rating Code sheet, dated September 9, 2017. Therefore, SMC at the housebound rate is granted from October 10, 2013, to October 9, 2014. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for service-connected lumbar spine stenosis with IVDS is remanded. During his November 2019 Board hearing, the Veteran asserted that his back hurt all of the time, that he cannot have free movement, and that he cannot bend over. While the Veteran did not specifically assert that his service-connected lumbar spine stenosis with IVDS has worsened since his last VA examination, the Board observes that such was conducted in April 2015, almost six years ago. He has offered current lay statements as to more severe spine symptoms, specifically, more limited motion in free movement and bending over. On remand, the RO should afford the Veteran a new VA examination to determine the current severity of his disability. The new VA examination should comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59, or an explanation as to why such testing is not warranted or not possible. Id. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of ROM during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. The most recent VA treatment records available for Board review are dated in March 2015; on remand, the RO should obtain and associate with the claims file the Veteran’s updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records from March 2015 forward. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected lumbar spine stenosis with IVDS. The appropriate DBQ should be filled out. In the examination report, the examiner must include all the following: (a) results of active range of motion (ROM) testing; (b) results of passive ROM testing; (c) results of weightbearing ROM testing; and (d) results of non-weightbearing ROM testing. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or non-weightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of ROM during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific   explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.