Citation Nr: 21011862 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-13 358 DATE: March 2, 2021 ORDER Restoration of a 20 percent rating for a lumbar disability is dismissed. For the period of appeal prior to April 18, 2018, a rating in excess of 30 percent for major depressive disorder and generalized anxiety disorder is denied. For the period of appeal from April 18, 2018, to December 12, 2019, a 70 percent rating for major depressive disorder and generalized anxiety disorder is granted. For the period of appeal from December 13, 2019, a rating in excess of 70 percent for major depressive disorder and generalized anxiety disorder is denied. A rating in excess of 30 percent from August 20, 2012, to February 1, 2018, in excess of 50 percent from February 2, 2018, for migraine headaches is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO reduced the rating for a lumbar disability from 20 percent to 0 percent, effective September 1, 2011. 2. In a May 2019 rating decision, the 20 percent rating for the lumbar disability was restored, effective September 1, 2011. 3. For the period of appeal prior to April 18, 2018, the major depressive disorder and generalized anxiety disorder was productive of occupational and social impairment with occasional decrease in work efficiency. 4. For the period of appeal from April 18, 2018, the major depressive disorder and generalized anxiety disorder is productive of occupational and social impairment with deficiencies in most areas. 5. From August 20, 2012 to February 1, 2018, the migraine headaches were productive of prostrating attacks occurring on an average once a month over last several months; from February 2, 2018 the migraine headaches are productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The appeal of the reduction of the disability rating for a lumbar disability, from 20 percent to noncompensable, effective September 1, 2011, is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.202. 2. For the period of appeal prior to April 17, 2018, the criteria for a rating in excess of 30 percent for major depressive disorder and generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9400-9434. 3. For the period of appeal from April 17, 2018, to December 12, 2019, the criteria for a 70 percent rating for major depressive disorder and generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9400-9434. 4. For the period of appeal from December 13, 2019, the criteria for a rating in excess of 70 percent for major depressive disorder and generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9400-9434. 5. The criteria for a rating in excess of 30 percent prior to February 1, 2018, and in excess of 50 percent thereafter for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1999 to February 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating reduction decision and a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Veteran’s 20 percent rating for a lumbar disability was reduced by the August 2011 rating decision. The Veteran submitted a notice of disagreement on August 20, 2012, which also contained requests for increased ratings for the Veteran’s service-connected migraine headaches and major depressive disorder. In July 2013, the RO issued a rating decision that denied increased ratings for migraine headaches and major depressive disorder. The Veteran submitted a notice of disagreement in September 2013. By an April 2014 rating decision, the rating for the Veteran’s migraine headaches was increased to 30 percent effective August 2012, the 30 percent rating for his major depressive disorder was continued, and the lumbar disability rating was increased to 10 percent effective September 1, 2011. The Board remanded the case back to the RO by a February 2017 decision to associate VA records with the file and to obtain any private records that were not associated with the claims file. In May 2019, the RO issued a rating decision that reinstated the 20 percent rating for a lumbar disability, effective September 1, 2011, and granted an increased rating of 50 percent for the Veteran’s migraine headaches effective February 2, 2018. In a February 2020 rating decision, the rating for major depressive disorder was increased to 70 percent effective December 13, 2019. The Veteran’s appeal has now been returned to the Board for further appellate review. 1. The issue of entitlement to restoration of a 20 percent rating for a lumbar disability is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. By an April 2019 rating decision, the RO restored the original 20 percent evaluation for a lumbar disability, effective from September 1, 2011, which was the effective date of the reduction. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Here, in essence, a “case or controversy” involving a pending adverse determination to which the Veteran has taken exception no longer exists. The April 2019 rating decision adjusted the Veteran’s rating for his lumbar disability to reflect the original 20 percent rating from the date of the reduction. As such, the Veteran’s appeal for restoration of a 20 percent rating for his lumbar disability has effectively been granted, and a case or controversy on that issue no longer exists. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Based on the foregoing, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. – 4. Increased ratings for major depressive disorder and generalized anxiety disorder. The Veteran’s psychiatric disorder is currently assigned a 30 percent disability for the period of prior to December 13, 2019, and a 70 percent rating therefrom. 38 C.F.R. § 4.130, DC 9400-9434. A psychiatric disorder is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is 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; and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. Symptoms listed in the General Rating Formula for 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 (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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. In September 2013, the Veteran was afforded a VA mental disorders examination. The examiner confirmed the diagnosis of a depressive disorder and opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that his homelife was not good, as he was either sleeping or working. He reported that he was close with his brother and cared about his family, but they didn’t interact much. The Veteran had received a promotion which brought additional work duties and inconsistent schedule that did not suit him very well. The examiner noted symptoms of depressed mood and anxiety. The examiner stated that the Veteran was capable of managing his financial affairs. The Veteran’s medical treatment records demonstrate that the Veteran has a history of severe depression. However, the records indicate that for the period of August 20, 2012 to April 17, 2018 the Veteran’s mental status did not raise to level in excess of a 30 percent rating. The Veteran was oriented to person, place, time and situation, normal rate and rhythm of speech, was dysphoric with social anxiety and affect congruent with mood, no alterations in thought processes, some difficulty with concentration, no alterations in though content, no delusions, no hallucinations, good insight, no evidence of explosive behavior, was not deemed to be a threat to himself or others, was not shown to have panic attacks more than once per week, and although work was stressful he was able to perform his work duties. A December 2017 medical note mentioned that he had memory loss as he would not recall something that happened a few days before. However, such memory loss is consistent with mild memory loss as described under the 30 percent rating criteria. In January 2018, the Veteran was afforded another VA mental disorders examination. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The symptoms were found to be depressed mood, anxiety, disturbances of motivation and mood. The examiner noted that the Veteran was alert, oriented times three, had good hygiene, good eye contact, his mood was congruent to thinking, affect in full range, speech was clear and goal oriented, he had no thought disorganization, no signs of psychosis or mania, and no suicidal or homicidal thoughts were reported. The Veteran was also determined to be capable of managing his financial affairs. The findings of the January 2018 VA mental disorders examination were consistent with a 10 percent rating under DC 9434. As such, no medical records prior to April 18, 2018 demonstrate that the Veteran’s major depressive disorder symptoms were consistent with 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; and difficulty in establishing effective work and social relationships. Therefore, a rating in excess of 30 percent from August 20, 2012 to April 17, 2018 is not warranted. In May 2018, a psychosocial assessment, dated April 18, 2018, was received in the record. That assessment opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and /or mood. It determined that the Veteran’s symptoms included difficulty concentrating, generalized anxiety with daily panic attacks, long-term memory loss, flashbacks and intrusive thoughts, sleep disturbance, overwhelming feelings of sorrow with hopelessness, bouts of being withdrawn and isolative, and depression. The symptoms noted in the disability benefits questionnaire accompanying the psychosocial assessment indicated depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, panic attacks more than once a week, impairment of short and long term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, 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, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. In December 2019, the Veteran was provided a VA mental disorders examination. He reported that he was living with his girlfriend of nearly eight years, her mother, and their two young daughters. On examination, he was noted to be well groomed and neat. He was cooperative and forthcoming, and his mood was anxious and depressed. The examiner noted the Veteran to have symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He was noted to be capable of managing his financial affairs. The Board finds that the April 18, 2018, evaluation demonstrates symptoms consistent with the findings of the December 2019 VA examination. As noted above, the December 2019 VA examination report was the basis for the increase to a 70 percent rating. As such, a 70 percent rating is warranted from April 18, 2018. However, neither the April 2018 nor the December 2019 psychiatric examinations demonstrate that the Veteran had symptoms consistent with total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. The Board acknowledges that the Veteran was not working. However, the Board does not find this to be so frequent and disabling as to result in total occupational and social impairment at any point during the period of appeal. See Mauerhan v. Principi, at 442 (2002) (finding that symptoms contained in rating schedule criteria 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.”). Moreover, the Veteran was noted to have a longterm relationship with his girlfriend and he had relationships with his daughters. He was also noted to have good hygiene and to be capable of managing his finances. As such, the Board finds that the Veteran has not had any symptom with such frequency and severity to result in total occupational and social impairment during the period on appeal. Accordingly, entitlement to a rating in excess of 30 percent prior to April 17, 2018, is denied; a 70 percent rating is granted from April 18, 2018, to December 12, 2019, and a rating in excess of 70 percent from December 13, 2019, is denied. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. 49 (1990). 5. Increased ratings for migraine headaches. The Veteran’s migraine headaches disability is rated under DC 8100. Under DC 8100, a 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month over last several months; a 50 percent rating is warranted with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a DC 8100. The rating criteria do not define “prostrating.” But, the Board notes that, according to Webster’s New World Dictionary of American English, Third College Edition (1986), p.1080, “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th Ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” In November 2013, the Veteran was afforded a VA headaches examination. The examiner confirmed that the Veteran has a diagnosis of migraine headaches with pain localized to one side of the head. The headaches were determined to typically last for less than one day. The examiner indicated that the Veteran had prostrating attacks more frequently than once per month, but he had no very frequent prostrating and prolonged attacks of migraine or non-migraine headache pain. The examiner noted that the Veteran had to call off work due to migraine headaches. This assessment is most consistent with the criteria for a 30 percent rating as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability is not indicated. Upon review of the Veteran’s medical treatment records, it is clear that the Veteran has a long history of treatment for migraine headaches. However, the severity of the Veteran’s symptomology is not clearly delineated in the medical treatment notes. In July 2014, a medical note indicates that treatment for neuralgia pain seems to stave off his migraine headaches. In December 2017, it is indicated that the Veteran had migraine headaches 2 to 3 times per week with light sensitivity and aura prior to the pain. However, the severity of the headaches is not discussed. As such, a worsening of the Veteran’s migraine symptoms is not established until the February 2, 2018 VA headaches examination. Therefore, an increased rating in excess of 30 percent for migraine headaches is not warranted from August 20, 2012 to February 1, 2018. The February 2, 2018 VA headaches examination demonstrated that the Veteran’s migraine headaches had worsened. He was noted to have prostrating attacks of headache pain productive of severe economic inadaptability. The examiner indicated that the Veteran had severe incapacitating headaches 3 to 4 times per month requiring seclusion, rest, and sleep for half the day. Based on this assessment, the Veteran was determined to be entitled to a rating of 50 percent effective February 2, 2018. A rating of 50 percent is the highest rating for migraines. 38 C.F.R. § 4.124a, DC 8100. From February 2, 2018, the Veteran has been rated at the highest rating schedule for migraine headaches. Further, the record does not establish an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards and warrant extra-schedular consideration. Thun v. Peake, 22 Vet. App. 111. Although the record indicates that the Veteran’s migraine headaches impact his employment, the rating schedule considers that impact. As such, the Veteran’s symptomology does not present an exceptional or unusual disability picture. Therefore, entitlement to a rating in excess of 50 percent for migraines is denied. Accordingly, entitlement to a rating in excess of 30 percent from August 20, 2012, to February 1, 2018, and a rating in excess of 50 percent from February 2, 2018, for migraine headaches are not warranted. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran asserted in a December 2019 VA mental disorders examination that he was being medical retired from his job at Ann Arbor VA and was anxious about the future would look like as a result of not working. Entitlement to total disability evaluation based on individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the holding in Rice, as well as the evidence of record, the Board has amended the issues on appeal to include entitlement to a TDIU as reflected above. The Veteran’s last date of employment is unclear. Moreover, the AOJ has not developed or adjudicated the matter. As such, the Board must remand for such action. 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). The severity of the Veteran’s service-connected disabilities, his employment history, his education and training, and all other factors having a bearing on the matter must be developed and considered. The matter is REMANDED for the following action: Send the Veteran a VCAA notice for entitlement to a TDIU and any related development (such as a VA Form 21-8940). N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate 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.