Citation Nr: 21013971 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 190422-8623 DATE: March 11, 2021 ORDER Prior to November 15, 2018, an initial 50 percent rating for migraine headaches is granted. Prior to November 15, 2018, an initial 50 percent rating, but no higher, for an acquired psychiatric disorder is granted. REMANDED Entitlement to an initial compensable rating for costochondritis is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s migraine headaches were characterized by very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 2. During the period on appeal, the Veteran’s acquired psychiatric disorder manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to November 15, 2018, the criteria for an initial rating of 50 percent for migraine headaches were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. Prior to November 15, 2018, the criteria for an initial rating of 50 percent, but no higher, for an acquired psychiatric disorder were met. 38 C.F.R. § 4.130, Diagnostic Code 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2010 to June 2016. A rating decision was issued under the legacy system in November 2016. On November 15, 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in February 2019, which is the decision on appeal. In the April 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in. 38 C.F.R. § 20.301. In October 2019, the Board denied the issues on appeal. The Veteran appealed those denials to the Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand, reversing the Board’s prior decision and remanding these claims for further Board review. Evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability evaluations are determined by applying a schedule of ratings, which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 1. Migraine headaches Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated as 50 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8100. Based on the evidence of record, the Board determines that an initial 50 percent rating is warranted for the Veteran’s migraine headaches throughout the appeal period prior to November 15, 2018, as the evidence during that period shows that he began to experience very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define “prostrating,” nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). However, the Board notes that, according to WEBSTER’S NEW COLLEGE DICTIONARY 909 (3d ed. 2008), “prostration” is defined as “complete exhaustion.” Similarly, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1554 (31st ed. 2007) defines “prostration” as “extreme exhaustion or powerlessness.” Severe economic inadaptability is also not defined in VA law. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. It was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. Turning to the evidence, near the end of active duty, the Veteran’s migraine headaches were initially not prostrating. Specifically, a February 2016 service record noted headaches lasting about one hour with no associated photophobia or phonophobia and alleviated by relaxation. March 2016 and April 2016 service records show stabbing headache to temples, 5-7 hours in duration, causing pain at a level of 8-9 out of 10. The Veteran reported 10 of these attacks in February, and 15 in January. Associated with these symptoms were photophobia, phonophobia, nausea with vomiting, dizziness with mild tunnel vision, blurred vision, superimposed stabbing pain, and white floating spots. At this point, the Veteran, who was months away from service, was only prevented from common daily activities such as work or school for one day. By May 2016, the Veteran experienced 10-12 headaches per month average, with daily visual auras. At separation, the Veteran reported constant headaches. At his first post-service C&P examination in June 2016, the Veteran reported frontal headaches three times a week with nausea, auras, scotoma (partial loss of vision in an otherwise normal visual field), blurred vision, flashing lights, and sensitivity to lights and noise. While the Veteran’s June 2016 C&P examiner stated that these headaches were not prostrating, the Board interprets the lay and medical evidence to show that they were. Specifically, the Veteran’s competent and credible statements in his May 2017 notice of disagreement (NOD) indicate attacks multiple times a week during the period on appeal, which could last days, keeping the Veteran in bed and confined to darkness. Multiple times a month, the Veteran’s headaches caused what he calls “extreme fatigue and weakness, …. visual imperfections, light sensitivity, particles in vision, blurry vision, sensitive (to) noises, (pain upon) sudden movements and occasional flashes of bright light. While the Veteran’s June 2016 C&P examiner opined that the Veteran’s headache attacks were not “prostrating” in nature, the Board finds more probative value in the Veteran’s competent and credible statements of his symptoms. The Veteran’s multiple weekly headaches kept him in bed and confined to darkness. During these episodes, the Veteran was fatigued, weak, and confined to bed – in other words, exhausted and powerless. Due to the frequency, duration, and severity of his headaches, the Board finds that the Veteran’s credible description of these headaches during the period on appeal meets the above-listed definition of prostration - extreme exhaustion or powerlessness. Therefore, a 50 percent rating is warranted throughout the appeal period prior to November 15, 2018. This is the highest available rating under the applicable diagnostic code. 2. Acquired psychiatric disorder During the period prior to November 15, 2018, the Veteran is in receipt of a 30 percent rating for an acquired psychiatric disorder under Diagnostic Code 9410. He asserts that his symptoms during that period were severe enough to merit a higher initial rating. Following review of the record, the Board finds that a 50 percent rating, but no higher, is warranted prior to November 15, 2018. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As relevant here, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 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; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence, the Veteran’s June 2016 examiner noted irritability, short-temperedness, and chronic forgetfulness. In the Veteran’s May 2017 NOD, he stated that his “nerves” made it impossible for him to settle down, which prevented him from controlling his thoughts and emotions. As such, the Veteran stated, he could not relate to others, which affected his work, school, and family relationships. During his June 2016 VA examination, the Veteran stated that he maintained thriving relationships with established friends and family but described himself as “not social at all” and less social in situations in which he is not familiar. He also noted that he did not find he could relate to non-military civilians. The Veteran’s June 2016 examiner also noted that stressful situations caused the Veteran panic and anxiety, a finding the Veteran elaborated upon in his May 2017 NOD. Specifically, the Veteran cited his children crying as a stressor causing panic attacks. He also reported nightmares three to four times a week and panic attacks during which he hid in his closet. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the foregoing symptoms of the Veteran’s service-connected acquired psychiatric disorder and descriptions of the effects of those symptoms on his overall impairment most closely approximate occupational and social impairment with reduced reliability and productivity, such that a 50 percent disability rating prior to November 15, 2018 is warranted. On the other hand, the Board finds that an initial rating higher than 50 percent is not warranted during that same period, as the evidence does not establish that the Veteran was experiencing occupational and social impairment with deficiencies in most areas. In that regard, throughout the period at issue in this appeal, the Veteran presented to appointments casually dressed, pleasant, cooperative, and alert. At his June 2016 examination, he denied crying spells, feelings of worthlessness or guilt, or thoughts of hopelessness or self-harm. The Veteran’s June 2016 VA examiner also noted that the Veteran had good personal hygiene, was oriented in all spheres, spoke at a normal tone, rate, and volume, and did not report or display any formal thought disorder symptoms. Additionally, the VA examiner noted that the Veteran denied any history of perceptual distortions, hallucinations, false beliefs, or delusions. The Veteran also denied suicidal and homicidal ideation. Although irritability is documented prior to November 15, 2018, the evidence of record does not reflect impaired impulse control, such as unprovoked irritability with outbursts of violence, or trouble with the law. Similarly, although panic attacks are documented, the evidence does not suggest near-continuous panic affecting the ability to function independently, appropriately and effectively. The Veteran’s lay statements, to include his May 2017 NOD, do not contradict the medical evidence in that regard. The Veteran’s service-connected acquired psychiatric disability clearly impacts his social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 50 percent is warranted. The Veteran’s occupational and social functioning seemed to be, at worst, commensurate with a 50 percent rating prior to November 15, 2018. As already noted, the Veteran reported an inability to relate to non-military individuals at his June examination. Indeed, he noted a shift in world view after service, and being less social in unfamiliar situations. However, he also noted intact relationships with family and with close friends. Notably, per the 2016 examiner, the Veteran appeared to cope well with his stressors without clinically significant occupational or social impairment. Although the Board finds that the Veteran’s May 2017 NOD clarified the extent of his psychiatric symptoms, it does not find that such clarification established an overall level of impairment that warrants a 70 percent rating prior to November 15, 2018. In summary, the relevant evidence of record prior to November 15, 2018 establishes that the Veteran’s psychiatric symptoms were causing reduced reliability and productivity but does not establish that his symptoms were causing deficiencies in most areas. Any social isolation or occupational deficiencies the Veteran did experience are contemplated by the 50 percent rating assigned herein. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt and has applied it in awarding a 50 percent rating prior to November 15, 2018. However, to the extent this claim is being denied, the preponderance of the evidence is against an even higher initial rating during that period. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. REASON FOR REMAND The issue of entitlement to a higher initial rating for costochondritis is remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. In that regard, the AOJ obtained a June 2016 Muscle Injuries examination prior to the February 2019 rating decision on appeal. However, the examination did not address symptomology the Veteran subsequently described in his May 2017 NOD. Specifically, the Veteran reported in his NOD that his costochondritis caused difficulty sleeping, breathing, and constant pain that made activities of daily living impossible without help. As the Veteran’s May 2017 statement suggested worsening of his costochondritis but he was not afforded another examination prior to issuance of the February 2019 rating decision, remand to correct this duty to assist error is required. The matter is REMANDED for the following action: Schedule the Veteran for an examination to determine the severity of his service-connected costochondritis. The examiner must be provided access to the electronic claims file. All necessary testing must be completed. The examiner should provide a full description of the Veteran’s costochondritis and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In providing the requested information, the Board also asks the examiner to address the symptoms the Veteran attributed to his costochondritis in his May 2017 NOD (difficulty sleeping, breathing, and constant pain) and to elicit information from the Veteran regarding the daily activities these symptoms affect. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia 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.