Citation Nr: 21014184 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-14 169A DATE: March 11, 2021 ORDER An initial 100 percent rating for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) with traumatic brain injury (TBI), is granted. An initial 50 percent rating for migraine headaches is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's PTSD with TBI has been characterized by symptoms resulting in total occupational and social impairment. 2. Throughout the entire period on appeal, resolving doubt in his favor, the Veteran's migraine headaches are manifested by very frequent, completely prostrating and prolonged attacks capable of producing severe economic inadaptability. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal, the criteria for a 100 percent rating for PTSD with TBI have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.7, 4.130 Diagnostic Codes (DCs) 9411-8045. 2. Throughout the entire period on appeal, the criteria for, a maximum, 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27. 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2000 to December 2003. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.1 (2016). Where entitlement to compensation has already been established and an increase in the assigned rating is at issue, it is the present level of disability that is of primary concern. Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2016). 1. An initial 100 percent rating for an acquired psychiatric disorder, to include PTSD with TBI, is granted. The Veteran contends that his service-connected PTSD with TBI warrants a higher rating than that which is contemplated by his current 70 percent rating. For the reasons set forth below, a 100 percent rating is warranted, throughout the entire period on appeal. DC 9411 provides for a 70 percent rating is appropriate where the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is appropriate where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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; memory loss for names of close relatives, own occupation or own name. Id. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443 In a March 2013 private medical record, the Veteran reported experiencing depression, an inability to sleep, pessimism, low motivation, easy startle reflex, hypervigilance, and difficulty relaxing. In a March 2013 Disability Benefits Questionnaire (DBQ), the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbance of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting. In an April 2013 private medical note, the Veteran reported depression, anxiety, fear, anger, irritability, difficulty concentrating, difficulty with thought, difficulty with finances, and difficulty with relationships. In an April 2014 letter, Dr. A.L.R., a psychologist, stated that she has been treating the Veteran since 2012. She stated that the Veteran reported that he was fired from his last four jobs, and that he does not have access to his two children that he has with his former spouse. In an April 2014 letter, the Veteran's sister stated that she has noticed an extreme and consistent change in the Veteran's mood and behavior. She stated that she has witnessed the Veteran become angry and frustrated for no apparent reason. She also stated that the Veteran does not seem to be motivated to attend family and social events. She stated that the Veteran expressed his fear of leaving the house and stated that he told her that he feels more comfortable by himself. In a July 2014 statement, the Veteran's spouse stated that the Veteran has angry outbursts, that he is easy to become upset and irritated, and that he is easily startled. She stated that he has difficulty making friends and socializing with family. She also stated that the Veteran is very anxious and extremely nervous. She stated that the Veteran prefers to be home and isolated. She stated that he frequently awakes in the middle of the night screaming, shaking, and crying in terror. She stated that the Veteran's symptoms have impacted their marriage and social life. She also stated that she called the police on one occasion because the Veteran was emotionally aggressive and physical with her. She noted that the Veteran has lost job opportunities and has had trouble with co-workers and bosses due to his condition. In July 2014 statement, the Veteran reported having sleep disturbance, nightmares, anxiety, a quick temper, problems with self-esteem, angry outbursts, and antisocial behavior. He also reported that he has lost jobs due to angry outbursts. In another, July 2014 statement, the Veteran reported that his behavior is impacting his marriage, his life, his work, and the opportunity to have a normal life. In a March 2015 VA examination, the examiner noted diagnoses of PTSD, severe alcohol use disorder, unspecified depressive disorder, and cognitive disorder. The examiner also noted that TBI is a diagnosis that is relevant to the understanding or management of the Veteran's mental health disorders. The examiner noted that it is not possible to differentiate the Veteran's diagnoses and stated that they are all contributory. The examiner noted that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, and thinking and/or mood. The Veteran reported that he has two children from a previous marriage with whom he does not have a relationship. He reported that he has been married to his current spouse for four years and that there are significant problems within the marriage due to his mental health condition. The Veteran reported that he has been violent toward his spouse in the past. He reported that he punches and thrashes in his sleep and that his spouse frequently sleeps in another room due to fear of being hurt. He also reported that he is easy to anger and that he does not want to go anywhere. He reported that when he is upset, he breaks things at home. The Veteran reported multiple problems with regard to past employment due to his behavior. He reported nightmares and flashbacks with a frequency of three per week, intrusive thoughts, avoidance, fear, being easy to anger, reckless behavior, hypervigilance, trouble sleeping, trouble concentrating, and being withdrawn. The examiner noted the following symptoms associated with the Veteran's condition: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impairment of short and long-term memory; circumstantial, circumlocutory or stereotyped speech; impaired judgement; 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 impaired impulse control, such as unprovoked irritability with periods of violence. In a December 2015 private medical evaluation, the examiner stated that the Veteran's PTSD symptoms cause marked impairment in important parts of his life. The examiner stated that the Veteran is maintaining a marginal existence and is employed with difficulty. The examiner noted that the Veteran’s home life was described as “touchy,” and that he has had major problems with acting out. The examiner also noted that the Veteran experiences chronic anger and unstable relationships. The following symptoms associated with his mental health condition were noted: depressed mood; anxiety; suspiciousness; panic attacks; sleep disturbance; impairment of short and long-term memory; circumstantial speech; impaired judgement; disturbances of motivation and mood; difficulty in establishing working and social relationships; difficulty in adapting to stressful circumstances; an inability to establish effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. In a February 2017 VA examination, the examiner noted a diagnosis of TBI. The Veteran and his spouse attended the examination. The Veteran endorsed problems with memory, attention, concentration, and executive functions. He reported frequent angry outbursts that has strained his marriage and his relationships with family. The Veteran also reported an inability to control his actions, frequent extreme irritability, impulsivity, unpredictability, lack of motivation, aggression, and apathy. The Veteran's spouse reported that the Veteran's irritability has progressed to near continuous. The Veteran and his spouse reported that they have nearly no remaining relationships with friends due to the Veteran's behaviour. The examiner remarked that the Veteran's diagnosis has a substantial impact on his ability to work. In the July 2020 Board hearing, the Veteran testified that he has missed work due to his psychiatric condition. Specifically, he stated that he misses work approximately once weekly. He also testified that he has had violent encounters with co-workers. The Veteran testified that outside of work, he does not socialize. He also testified to marital difficulties due to his condition. With resolution of the doubt in the Veteran’s favor, the Board grants a 100 percent rating for PTSD with TBI. The evidence shows that the Veteran has been fired from multiple jobs, lost job opportunities, and has had altercations with co-workers and bosses due to angry outbursts. The December 2015 private examiner stated that the Veteran’s PTSD symptoms have caused marked impairment on the important parts of his life and stated that the Veteran is maintaining a marginal existence. Major problems with acting out were noted. The February 2017 VA examiner remarked that the Veteran's diagnosis has a substantial impact on his ability to work. In the July 2020 Board hearing, the Veteran stated that he works alone, but testified that he has missed work due to his psychiatric condition. He also testified that he has had violent encounters with co-workers. The evidence also shows that the Veteran does not want to leave home and feels more comfortable alone. He has reported that he does not have a relationship with his children that he has with his former spouse. The evidence also shows that the Veteran has significant problems with his marriage and their social life. The Veteran’s spouse reported that they have nearly no remaining relationships with friends due to the Veteran's behaviour and reported that the Veteran's irritability has progressed to near continuous. The Veteran has reported that he breaks things at home during angry outbursts. The record also shows that the Veteran has been violent with his spouse. In fact, his spouse reported that she had to call the police on an occasion when the Veteran became aggressive and physical with her. For the reasons discussed, the symptoms of the Veteran’s PTSD with TBI are productive of total occupational and social impairment. Therefore, throughout the entire period on appeal, a 100 percent rating is warranted, and the claim is granted. 2. An initial 50 percent rating for migraine headaches is granted. The Veteran contends that his service-connected migraine headaches warrants a higher rating than that which is contemplated by his current noncompensable rating. For the reasons set forth below, a maximum, 50 percent rating is warranted, throughout the entire period on appeal. Under DC 8100, a noncompensable rating is warranted when there is evidence of migraine headaches with less frequent attacks. A 10 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted when there is evidence of migraine headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent rating is warranted with evidence of migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See 38 C.F.R. § 4.12a. In a September 2010 VA medical record, the Veteran reported that he lost his job due to his migraines. In a March 2015 VA examination, the examiner noted that the Veteran reported having one to two mild to moderate headaches weekly with a duration of 15 to 20 minutes. The examiner noted that the Veteran reported severe headache once per month, which results in an inability to work. However, the examiner did not provide a response as to whether the Veteran has prostrating attacks of headache pain. In a February 2017 VA examination, the examiner noted that the Veteran has a diagnosis of migraine headaches. His headaches were associated with extreme light and sound sensitivity. Headache pain was described as pulsating or throbbing with pain on both sides of the head. Headache frequency was noted as daily with a typical duration of less than one day. The examiner noted that the Veteran does not have characteristic prostrating attacks. The examiner remarked that the Veteran's headaches do not impact his ability to work. In the July 2020 Board hearing, the Veteran testified that he has "very intense" headaches with a frequency of two times per week that "put me out of, you know, my daily routine." When having an episode at work, the Veteran testified that we would "go find a latrine [. . .] and just hide for a little bit." He testified that he has missed a lot of work as a consequence and that he has a bad reputation of using up all of his sick days, mostly for his headaches, but also for his depression. In fact, the Veteran testified that he was close to termination from work due to the amount of work he has missed. He testified that, when not working, while having an episode "I lock myself in my room [. . .] away from family, the kids." Upon review of the pertinent evidence considering the governing authority, the evidence supports a favorable determination that the Veteran' migraine headaches manifest as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. While the Veteran maintains employment, the frequency and severity of his migraines are capable of producing severe economic inadaptability as his attacks are frequent, completely prostrating and prolonged. Upon affording the Veteran the benefit of the doubt, a maximum 50 percent rating is assigned. The September 2010 VA medical record indicates that the Veteran lost his job due to his migraines. The March 2015 VA examiner noted that the Veteran experiences one to two mild to moderate headaches weekly with a duration of 15 to 20 minutes, and severe headache once per month, which results in an inability to work. The February 2017 VA examiner noted that the Veteran’s headaches are associated with extreme light and sound sensitivity, and described his pain as pulsating or throbbing with pain on both sides of the head with a frequency noted as daily, and with a typical duration of less than one day. The examiner noted that the Veteran does not have characteristic prostrating attacks and remarked that the Veteran's headaches do not impact his ability to work. In the July 2020 Board hearing, the Veteran testified that he has "very intense" headaches with a frequency of two times per week that "put me out of, you know, my daily routine," and cause the Veteran to "go find a latrine [. . .] and just hide for a little bit." The Veteran also testified that he has missed a lot of work as a consequence and that he has a bad reputation of using up all of his sick days, mostly for his headaches. As discussed above, the Veteran testified that he was close to termination from work due to the amount of work he has missed. When not working and having an episode the Veteran stated, "I lock myself in my room [. . .] away from family, the kids." Collectively, the evidence in equipoise as to whether the Veteran experiences very frequent completely prostrating and prolonged attacks. Resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence of very frequent completely prostrating and prolonged attacks is met. DC 8100 also requires that the headaches are productive of severe economic inadaptability at the 50 percent rating level. The term "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. However, the United States Court of Appeals for Veteran's 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. However, the headaches must, at minimum, be capable of producing "severe" economic inadaptability. Nonetheless, the record shows that the Veteran lost a job and was near termination from another job due to his headaches. In conclusion, the evidence at least in equipoise as to whether the Veteran's headaches are productive of severe economic inadaptability. While the February 2017 VA examiner found they did not impact employment, the Veteran has competently and credibly testified that his headaches cause total incapacitation, have caused him to lose employment, and require him to miss work and even hide while working until his headaches resolve. Resolving any doubt in favor of the Veteran, the portion of the 50 percent rating criteria requiring evidence that the headaches are productive of severe economic inadaptability is met. A 50 percent rating is the maximum rating available for migraine headaches pursuant to DC 8100. No other diagnostic code is applicable, and no other DC can be identified which would afford a rating higher than 50 percent for the migraine headaches. Therefore, a 50 percent rating is warranted and, the claim is granted. 38 C.F.R. § 4.7. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.