Citation Nr: 21014309 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-51 883 DATE: March 11, 2021 ORDER Entitlement to a 30 percent rating for migraine headaches for the entire appeal period is granted. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder with anxious distress, is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s migraine headaches have manifested by characteristic prostrating attacks averaging once a month, or by symptoms approximating such level of severity. 2. The evidence of record shows that the Veteran has been diagnosed with an acquired psychiatric disorder, unspecified depressive disorder with anxious distress, that was at least as likely as not caused by service. Although he also has a diagnosed personality disorder, the evidence shows that the personality disorder existed prior to service and no mental disability was superimposed upon such personality disorder. His unspecified depressive disorder is unrelated to his personality disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent rating for migraine headaches for the entire appeal period have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder with anxious distress, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from May 1989 to March 1993—including service in Southwest Asia. He testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in March 2021. 1. Entitlement to a compensable rating for migraine headaches. The Veteran’s migraine headaches are currently assigned an initial noncompensable rating under Diagnostic Code 8100. The Veteran contends that throughout the appeal period, his disability picture has more nearly approximated the criteria for a 30 percent rating. At his Board hearing, he stated that a grant of a 30 percent rating for the entire appeal period would satisfy his appeal. He also limited his appeal to requesting 30 percent for his migraine headaches on his Notice of Disagreement (NOD) filed in July 2018. Under Diagnostic Code, 8100, the Diagnostic Code used to evaluate migraine headaches, a zero percent rating is warranted for migraine headaches with less frequent attacks. For migraines with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation is assigned. A 30 percent evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent evaluation is warranted for migraines with 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. at 126-127 (quoting Diagnostic Code 8100 verbatim but not specifically addressing the definition of a prostrating attack). By way of reference, in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), “prostration” is defined as “extreme exhaustion or powerlessness.” After having considered all of the evidence of record, the Board finds that a 30 percent rating for the Veteran’s migraine headaches is warranted for the entire appeal period. The Veteran was afforded a VA examination for his migraines in May 2017. At that time, he reported getting a mild (4/10) headache every morning when he opened his eyes due to light. He stated it would begin in the occiput and felt like stabbing pain with nausea. He reported that the headaches would resolve after an hour, but it often would return late afternoon or evening and would be significantly worse (8/10 in severity). The examiner noted that the Veteran experienced pulsating or throbbing head pain as well as nausea and sensitivity to light as a result of his migraines. The migraines were noted to last less than a day. The Veteran did not have characteristic prostrating attacks of migraine pain. In July 2018, the Veteran submitted a headache log. The log documents that he had a headache that lasted 14 hours on January 2, 2017, that caused dizziness, nausea, and profuse sweating. The headache was 9/10 in intensity. The next day he experienced a headache that lasted 18 hours and caused him to stay in bed all day. He had vomiting, dizziness, and profuse sweating and was rated 10/10 in intensity. He again experienced a 10/10 headache that lasted 16 hours on January 14, 2017. At his Board hearing, the Veteran testified that his headaches have been consistent throughout the appeal period. Resolving all doubt in favor of the Veteran, the Board finds that the evidence of record supports a rating of 30 percent for the service-connected migraine headaches for the entire appeal period. In support of the claim are the Veteran’s statements and hearing testimony that he experiences incapacitating headaches at least once a month that and are accompanied with nausea; vomiting; and light sensitivity. Although these headaches do not last 24 hours and therefore it cannot be said they cause complete exhaustion and powerlessness, the Veteran has provided headaches logs to suggest that these headaches remain for almost the whole day and occur more than once per month. Therefore, his disability picture more nearly approximates the 30 percent rating criteria. Because the Veteran has limited his appeal, the Board need not address the criteria for a higher rating. Instead, the Board finds that for the entire appeal period, the Veteran’s migraine headaches are shown to have been manifested by characteristic prostrating attacks averaging once a month, or by symptoms approximating such level of severity. This represents a full grant of the benefit sought on appeal. 2. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as unspecified depressive disorder with anxious distress. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fifth Edition (DSM-V). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). To establish service connection for a psychiatric disorder other than PTSD, the evidence must show that a current psychiatric disorder had its onset during or is otherwise related to military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In general, personality disorders are “defects” that are not “diseases” or “injuries” within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Congenital or developmental “defects,” such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. As such, “[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited....” 61 Fed. Reg. 52,695. However, 38 C.F.R. § 4.127 provides that a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis. See VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders are superimposed upon a diagnosed personality disorder. The Veteran contends that service-connection is warranted for PTSD. VA treatment records from April 2016 show that the Veteran called the suicide hotline because he was experiencing loneliness, relationship problems, anger issues, medical issues, family problems, sleep issues, and PTSD symptoms. Similarly, other April 2016 VA treatment records show that the Veteran had a positive PTSD screen. However, these records do not state that a diagnosis of PTSD was rendered consistent with the DSM-V criteria. VA treatment records from December 2016 indicate that the Veteran was to be seen in a month for PTSD and depression. VA treatment records from January 2017 show that the Veteran was seen for an evaluation of PTSD/anxiety/depressive disorder/sleep disturbance symptoms. The ultimate diagnosis was adjustment disorder with mixed anxiety and depression; insomnia unspecified; and antisocial personality disorder. In June 2018, the Veteran submitted a statement from a private psychologist indicating “[the Veteran] had come in with a diagnosis of major depressive disorder, recurrent, moderate and PTSD.” She did not state that she rendered such diagnoses and there is no indication such diagnoses were rendered consistent with the DSM-V criteria. The Veteran was afforded a PTSD VA examination in May 2017. At that time, the examiner found that the Veteran did not have a diagnosis of PTSD that conformed with the DSM-V criteria. The examiner stated that it was the Veteran’s symptoms, as opposed to his stressors, that did not meet the diagnostic criteria for PTSD under DSM-V. Instead, the examiner found that the Veteran’s acquired psychiatric disability picture was better diagnosed as “unspecified depressive disorder with anxious distress.” The examiner also diagnosed “other specified personality disorder, mixed personality features.” The examiner noted that the Veteran’s reported stressor, which “occurred December 1990 while with Bravo 426 S&T Battalion 101st Airborne Division. The Veteran was tasked to load materials. He witnessed a soldier crushed between a vehicle/forklift and a pallet,” met Criterion A (was adequate to support a diagnosis of PTSD). His second stressor, which occurred “in October 1991, while with the same company, the Veteran was tasked to do maintenance on vehicles. As service members near his work area were attempting to remove a flat tire, a compression ring flew off and decapitated a solider and maimed another,” also met Criterion A. After providing a thorough in-person examination, and reviewing the Veteran’s entire claims file, the examiner stated: The Veteran’s crystallized pattern of behavior and interpersonal relating meets criteria for the currently rendered diagnosis of other personality disorder, with antisocial features. The emergence of the condition more than likely predates entrance into the military (when he was 21 years old and remained steady since he reached the age of majority (18 years old)). VA providers noted personality disorder disturbance through mental health encounters and record review (May 2016; January 2017). The Veteran’s symptoms meet diagnostic criteria for unspecified depressive disorder with anxious distress. His two stressors related to witnessing the death and maiming of fellow soldiers during non-combat, occupational accidents are disturbing experiences. However, the Veteran does not meet all criteria for symptom number, duration and intensity for intrusive symptoms, hyperarousal, negative alterations in cognition and mood and avoidance behaviors for PTSD. Weighing credence to the record, the Veteran’s symptoms are best explained by unspecified depressive disorder with anxious distress. The symptoms emerged following his Southwest Asia deployment and have remained steady over time. It is more likely than not that the Veteran’s unspecified depressive disorder with anxious distress occurred in or was caused by service. The Board finds the May 2017 VA examiner’s opinion highly probative. She provided a clear conclusion with supporting rationale relating the Veteran’s depressive disorder with anxious distress to, inter alia, his documented deployment to Southwest Asia. She acknowledged that the Veteran experienced PTSD symptoms, however, explained that these symptoms were not of the type and severity to render a diagnosis of PTSD consistent with the DSM-V criteria. Further, she explained that the Veteran does, however, meet the criteria for unspecified depressive disorder, which the examiner attributed to the Veteran’s service. She explained that the Veteran also had a personality disorder, which as noted above, is not a disability for VA compensation purposes, absent a superimposed disability. In this instance, the examiner found that the Veteran’s personality disorder has remained consistent and he did not have a superimposed injury. Instead, he has a separately diagnosed psychiatric disorder that exists completely apart from his personality disorder that is related to service. The Board acknowledges the Veteran’s lay reports regarding his personality disorder and his sincere belief that he meets the criteria for PTSD. He is competent to state the symptoms he experiences. However, he is not competent to provide a diagnosis or state that there has been any superimposed diagnosis. As such, his opinions on the matter lack probative weight. The most probative evidence does, however, show that the Veteran has a diagnosed acquired psychiatric disorder that has been related to his active duty service.   Thus, when resolving all reasonable doubt in his favor, the Board finds that service connection for unspecified depressive disorder with anxious distress is warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.