Citation Nr: 21012483 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-02 695 DATE: March 4, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement a 50 percent, but not higher, rating for chronic headaches for the period of August 18, 2010, to August 24, 2012, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 30 percent from August 25, 2012, for chronic headaches is denied. REMANDED Entitlement to a rating in excess of 40 percent, as of August 18, 2010, for prostatitis is remanded. FINDINGS OF FACT 1. The Veteran's PTSD has been manifested by occupational and social impairment with deficiencies in most areas, such as with work, school, family relations, judgment, thinking, or mood, but without total occupational and social impairment. 2. From August 18, 2010, to August 24, 2012, the Veteran’s chronic headaches were more nearly characterized by very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. From August 25, 2012, the Veteran's chronic headaches are characterized by characteristic prostrating attacks occurring on an average once a month. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. The criteria for a 50 percent, but not higher, rating for chronic headaches for the period prior to August 25, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. 3. The criteria for a rating in excess of 30 percent for chronic headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1973 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2011 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. However, the RO with jurisdiction over the Veteran’s claims is now in Winston-Salem, North Carolina. In August 2016, the Board remanded the Veteran’s claims for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2019). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7 (2019). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the veteran’s claim, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) The Veteran seeks higher disability ratings for his PTSD, which is rated 70 percent disabling for the entire period on appeal under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 70 percent disability 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); or inability to establish and maintain effective relationships. Id. A 100 percent disability 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 as to time or place; or demonstrated memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that 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." Id., at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id., at 443. The Veteran was afforded a VA examination for his PTSD symptoms in January 2012. The examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran has not been able to work since 2003. The examiner also noted that the Veteran persistently reexperienced his traumatic in-service events with recurrent and distressing recollections of the event, including images, thoughts or perceptions; recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring, this includes a sense of reliving the experience, illusions, hallucinations and dissociative flashback episodes, including those that occur on awakening or when intoxicated; intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; and physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The Veteran persistently avoids stimuli associated by his traumatic in-service events by efforts to avoid thoughts, feelings or conversations associated with the trauma; efforts to avoid activities, places or people that arouse recollections of the trauma; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; and feeling of detachment or estrangement from others. The examiner explained that there are marked alterations in arousal and reactivity associated with the traumatic events, beginning or worsening after they occurred, as evidenced by difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; and an exaggerated startle response. The examiner further endorsed symptoms such as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was afforded another VA examination for his PTSD symptoms in June 2017. The examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran lives with his wife, son, and his son’s girlfriend, noting a strained relationship with his daughter. The examiner also noted that the Veteran persistently reexperienced his traumatic in-service events with recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). The Veteran persistently avoids stimuli associated by his traumatic in-service events by avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). The examiner explained that the Veteran experiences negative alteration in cognitions and mood associated with his traumatic in-service event(s), as evidence by persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself or others; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; and persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings.) The examiner explained that there are marked alterations in arousal and reactivity associated with the traumatic events, beginning or worsening after they occurred, as evidenced by hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The examiner endorsed symptoms such as depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. The Veteran was afforded yet another VA examination for his PTSD symptoms in November 2020. The examiner opined that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the has been married for the past 38 years, with familial struggles. The examiner explained that the Veteran has residual traumatic stress symptoms including anxiety, panic attacks in frequent nightmares & crowds, depression with sleep disturbance with nightmares, suspicious, hyper-vigilant, easily startled, suspiciousness, socially isolated, brief suicidal ideation nearly daily, but does not have a plan or intent. He writes letters to help regulate his mood. The examiner also noted that the Veteran persistently reexperienced his traumatic in-service events with recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); and marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s). The Veteran persistently avoids stimuli associated by his traumatic in-service events by avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); and avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s). The examiner explained that the Veteran experiences negative alteration in cognitions and mood associated with his traumatic in-service event(s), as evidence by inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs); persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; and persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings.) The examiner explained that there are marked alterations in arousal and reactivity associated with the traumatic events, beginning or worsening after they occurred, as evidenced by hyper-vigilance; exaggerated startle response; problems with concentration; and sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep). The examiner endorsed symptoms such as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; and suicidal ideation. The Board finds that the examinations in the record are probative and should be considered competent evidence of record. Despite the Veteran’s serious symptoms, the Board finds that his symptoms were not so severe or frequent so as to result in total social and occupational impairment. In fact, throughout the period under review, the Veteran has remained married to his wife of more than 38 years, and with the exception of his daughter, also apparently experiences a satisfactory relationship with his son, and his son’s girlfriend. These facts affirmatively oppose the notion of a total social impairment. The Board further notes that while the Veteran’s symptoms clearly endorse his entitlement to a 70 percent rating, his symptoms consistently do not include many of the specified criteria associated with a total rating such as gross impairment in thought processes or communication; experiencing 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 as to time or place; or demonstrated memory loss for names of close relatives, own occupation, or own name. More specifically, although it is noted that the Veteran was forgetful of names in 2012, this was not indicated as being the names of close relatives, his occupation, or own name, and hallucinations that were noted at this time were in association with flashbacks of his military experiences and were not noted again in 2017 and 2020. Additionally, the Veteran’s ability to establish effective relationships with others is clearly impaired, but he is otherwise shown to have difficulty in relationships, which the Board does not find to be consistent with total social impairment. As such, the Board finds that the preponderance of the evidence is against a finding of a total social and occupational impairment, there is no doubt to be resolved, and that a rating in excess of 70 percent is not warranted. 2. Entitlement to a rating in excess of 30 percent, as of August 18, 2010, for chronic headaches In August 2010, the Veteran filed an informal claim for an increased rating and submitted a statement in September 2010 to support his claim. In October 2011, the RO granted a rating increase for chronic headaches to a 30 percent rating under Diagnostic Code 8100 from August 18, 2010. The Veteran is appealing the rating aspect of that decision. Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is appropriate with characteristic prostrating attacks averaging one in two months over the last several months. Id. A 0 percent rating is appropriate with less frequent attacks. Id. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. The rating criteria for a 50 percent rating contain several undefined phrases. Thus, these will be defined for the purposes of this decision in accordance with Porter v. Wilkie, No. 19-1521, 2020 U.S. Vet. App. Claims (June 3, 2020). The descriptive phrase “very frequent” connotes a frequency of at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive can be read as having either the meaning of “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). While the Veteran was granted an increased rating of 50 percent for his migraines, effective December 3, 2019, the Board concludes that the Veteran’s comprehensive symptoms for the entire appeal period more nearly approximate those contemplated by a 50 percent rating. The 30 percent rating only contemplates a frequency of prostrating attacks up to an average of once per month, a frequency which the Veteran’s headaches exceed. Further, a 30 percent rating does not consider the duration of the Veteran’s attacks, which the Board finds to be prolonged. Lastly, the Board finds the Veteran’s symptoms capable of producing severe economic inadaptability, as someone with the frequency and severity of such symptoms would likely need to use sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation. Throughout the course of this appeal, the Veteran was afforded VA examinations for chronic headaches in October 2010, January 2012, July 2017, and August 2020. The October 2010 VA examiner found that the Veteran's migraine headaches were characterized by daily headaches since service that were continuous around his right frontal region and superior orbital area that radiated to the right temple. The examiner noted that the Veteran’s headaches were non-throbbing, manifested as pressure and described as an intense dull pain, all the time, with some sharp and stabbing pains. The Veteran was noted to have sensitivity to light and nauseas. The Veteran was noted to have weekly headaches, and half of them are prostrating, lasting more than 2 days. The examiner opined that the Veteran’s chronic headaches impacted employment at it caused increased tardiness and absenteeism. The January 25, 2012, VA examiner found that the Veteran's migraine headaches were noted to be constant migraine-like headaches with sensitivity to light and sound. The examiner noted that the pain was localized to the frontal lobe area, causing sensitivity to light and sound, lasting 1-2 days. The examiner also found that the Veteran had prostrating attacks once every month. The July 2017 VA examiner found that the Veteran's migraine headaches resulted in constant head pain that is pulsating or throbbing and results in sensitivity to light. The examiner also noted that the Veteran’s head pain lasts less than 1 day and is located on both sides of the head. The August 2020 VA examiner found that the Veteran’s chronic headaches were located in the frontal region with sensitivity to light and sound, and associated nausea. The Veteran was found to have constant head pain on both sides of the head, that worsens with physical activity. Other symptoms included nausea, sensitivity to light, and sensitivity to sound. The Veteran was noted to have prostrating attacks once every month, lasting 1-2 days. With respect to the period prior to August 25, 2012, the Board will give the Veteran the benefit of the doubt and conclude that the Veteran’s comprehensive symptoms for the entire appeal period more nearly approximate those contemplated by a 50 percent rating. The 30 percent rating only contemplates a frequency of prostrating attacks of an average of once per month. However, based on the Veteran’s characterization of weekly headaches in 2010, half of which were prostrating, and assuming at least two weekly headaches, the Veteran was averaging at least 8 headaches a month, of which 4 were prostrating. Thus, the frequency criterion for this time period was exceeded. Further, a 30 percent rating does not consider the duration of the Veteran’s attacks, which the Board finds to be prolonged. Lastly, the Board finds the Veteran’s symptoms capable of producing severe economic inadaptability, as someone with the frequency and severity of such symptoms would likely need to use leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation, and the Veteran’s report of increased tardiness and absenteeism is consistent with such a finding. Therefore, the Board finds that the Veteran’s symptoms for the period prior to August 25, 2012, more nearly approximate the criteria for the highest rating under the applicable Diagnostic Code of 50 percent. On the other hand, the Board finds that from August 25, 2012, the Veteran's symptomatology is more consistent with a 30 percent rating. The remaining VA headaches examinations within the appeal period note that characteristic prostrating attacks occur about once a month. There is also no indication of any continued economic hardship. In sum, the symptomatology for the remaining appeal supports the continuation of a 30 percent, but not higher, rating based on characteristic prostrating attacks occurring on an average once a month. The evidence also does not support additional staged ratings for any time period on appeal, and for no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. REASONS FOR REMAND Entitlement to a rating in excess of 40 percent, as of August 18, 2010, for prostatitis is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the August 2016 remand, the RO was directed to obtain a VA examination for the Veteran's claim for an increased rating for prostatitis. The Board notes that the VA examination was not obtained. Therefore, the Board finds this to be a Stegall violation. Thus, on remand, a VA examination is needed to address the Board's August 2016 remand directives to determine the natural and severity of the Veteran's service-connected prostatitis. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician/s to determine the nature and severity of his service-connected prostatitis. The claims file and a copy of this remand must be made available for review. All appropriate tests and studies must be conducted. A clear rationale must be provided for all opinions expressed. The examiner must consider the Veteran's lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.