Citation Nr: 21013858 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-01 665 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to August 12, 2015, and in excess of 70 percent thereafter, for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder is denied. Entitlement to a compensable rating prior to February 18, 2016 for migraines is denied. FINDINGS OF FACT 1. Prior to August 12, 2015, the Veteran’s acquired psychiatric disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since August 12, 2015, the Veteran’s acquired psychiatric disorder has been manifested by occupational and social impairment with deficiencies in most areas. 3. Prior to February 18, 2016, the Veteran’s migraines were not manifested by characteristic prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to August 12, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411, 9434. 2. The criteria for a disability rating in excess of 70 percent for an acquired psychiatric disorder since August 12, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, DC 9411, 9434. 3. The criteria for a compensable rating for migraines prior to February 18, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1968 to May 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in November 2018 for further development. As a preliminary matter, the Board notes that in February 2021, the Veteran submitted medical literature in support of his claims. However, the Board finds that these studies do not sufficiently relate to the matters in issue to an extent that they could affect the disposition. On February 18, 2021, the Veteran’s representative waived all prior requests for additional time to submit evidence in support of the appeal. Therefore, the Board will proceed with the adjudication of the claims on appeal. 1. Entitlement to a rating in excess of 30 percent prior to August 12, 2015, and in excess of 70 percent thereafter, for acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran’s acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, DC 9411 and 9434. However, all psychiatric disorders are evaluated under a general rating formula for mental disorders. A 30 percent rating is warranted for 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, or recent events). Id. A 50 percent rating is assigned for 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 and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A maximum rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Prior to August 12, 2015 Effective July 26, 2012 through August 12, 2015, the Veteran’s acquired psychiatric disability was assigned a 30 percent disability rating under 38 C.F.R. § 4.130, DC 9411 and 9434. This appeal dates back to the Veteran’s July 2012 claim for service connection. After a review of the evidence of record, the Board finds that a disability rating in excess of 30 percent prior to August 12, 2015 is not warranted. In November 2012, the Veteran underwent a VA PTSD examination. See VA Examination, p. 3. The examiner found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As noted above, such an assessment indicates that a 30 percent disability rating is warranted. The examiner noted that the Veteran was able to maintain activities of daily living, including personal hygiene. Id. at 14. The Veteran did not exhibit inappropriate behavior and thought processes and communication were not impaired. Id. The Veteran submitted an August 2015 assessment from Dr. H-G regarding the etiology and severity of his PTSD. Dr. H-G stated that the Veteran’s symptoms have been existence since his return from military service through the date of filing for benefits. She further stated, “his deterioration continues to present date.” However, the Board finds these statements to be conclusory, as Dr. H-G failed to cite to specific medical evidence to support these conclusions. Accordingly, the Board assigns little probative value to these statements. Based on the evidence of record, the Board finds that the weight of the evidence preponderates against entitlement to a rating in excess of 30 percent prior to August 12, 2015. The examiner opined that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and that he did not exhibit inappropriate behavior and thought processes. His communication was not impaired. Additionally, the Board has assigned little probative value to Dr. H-G’s August 2015 statements regarding the history of the Veteran’s symptomatology, as they were conclusory. Thus, the Board finds that the November 2012 VA examiner’s findings outweigh Dr. H.G.’s conclusory statements. Accordingly, an increased rating prior to August 12, 2015 is not warranted. Since August 12, 2015 Since August 12, 2015, the Veteran’s acquired psychiatric disability has been assigned a 70 percent disability rating under 38 C.F.R. § 4.130, DC 9411 and 9434. In order to warrant the maximum 100 percent rating, the evidence must support the criteria outlined above. After a review of the evidence of record, the Board finds that a disability rating in excess of 70 percent from August 12, 2015 is not warranted. In August 2015, the Veteran submitted a PTSD Disability Benefits Questionnaire (DBQ) from a licensed psychologist, Dr. H-G. Dr. H-G found that the Veteran experienced occupational and social impairment with deficiencies in most areas. See Sept. 2018 VA Examination, p. 40. As noted above, such an assessment indicates that a 70 percent disability rating is warranted. The examiner noted that the Veteran’s attention was normal and that his concentration appeared variable. Id. at 43. Thought content was appropriate for the circumstances and organization of thought was goal directed. Id. The Veteran did not report overt hallucinations. Id. The examiner noted that the Veteran had average judgment. Id. The examiner further noted that the Veteran was capable of managing his financial affairs. Id. at 44. In June 2019, the Veteran underwent a VA PTSD examination. The examiner found that the Veteran experiences occupational and social impairment with deficiencies in most areas. The examiner noted that the Veteran was cooperative and arrived at the examination in appropriate clothing. Further, his speech prosody, rate, and rhythm were within normal limits. He engaged appropriately with the examiner and made appropriate eye contact. He was oriented on all spheres, although his mood was agitated and anxious with a flat affect. The examiner did not note any psychotic thinking and his thought content and processing were intact. The examiner noted that the Veteran exhibited fair insight and judgment. The examiner did not note that the Veteran was unable to perform the activities of daily living and noted that he was capable of managing his financial affairs. Based on the evidence of record, the Board finds that the weight of the evidence preponderates against entitlement to a rating in excess of 70 percent since August 12, 2015. During both examinations, the Veteran did not exhibit symptoms supporting a finding that he was totally occupationally and socially impaired. In August 2015, his attention was normal, and his thought content was appropriate for the circumstances and organization of thought was goal directed. In June 2019, he was oriented on all spheres and exhibited intact thought content and processing along with fair insight and judgment. Such findings are not consistent with the requirements for a 100 percent rating per 38 C.F.R. § 4.130. Accordingly, an increased rating after August 12, 2015 is not warranted. 2. Entitlement to an initial compensable rating prior to February 18, 2016 for migraines. As an initial matter, the Board notes that a June 2020 rating decision granted an increased rating of 50 percent, effective February 18, 2016, for the Veteran’s service-connected migraine headache disability. As noted below, a 50 percent rating is the highest schedular rating allowed for migraine headaches. Thus, the primary inquiry before the Board is whether the Veteran is entitled to an initial compensable rating prior to February 18, 2016. In his statements throughout the appeal period, the Veteran contends that he is entitled to an initial compensable rating prior to February 18, 2016 for migraines. His disability is evaluated under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In December 2012, the Veteran underwent a VA headaches and migraines examination. See Sept. 2012 VA Examination, p. 22. The examiner diagnosed the Veteran with migraines, including migraine variants. Id. However, the examiner indicated that the Veteran did not experience characteristic prostrating attacks of migraine headache pain. Id. at 25. There is no other evidence of record indicating that the Veteran experienced characteristic prostrating attacks prior to his February 18, 2016 examination. Based on the foregoing, the Board finds that the weight of the evidence preponderates against entitlement to an initial compensable rating for headaches prior to February 18, 2016. The evidence of record fails to show that that the Veteran experienced migraines with characteristic prostrating attacks that average one in 2 months over the last several months of the pertinent period. As stated, there was no evidence of such attacks generally. Accordingly, a compensable rating for the period prior to February 18, 2016 is not warranted. See 38 C.F.R. § 4.124a, DC 8100. The Veteran has not raised any other issues with respect to his claim on appeal, nor have any other assertions 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). Michael L. Marcum Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.