Citation Nr: 21021890 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-23 525 DATE: April 14, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is denied Entitlement to a disability rating in excess of 10 percent for a service-connected coccyx fracture is denied. Entitlement to a disability rating in excess of 30 percent prior to August 21, 2013, and in excess of 50 percent thereafter, for service-connected headaches, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s psychiatric disabilities were not incurred in or due to his time in service. 2. The Veteran’s coccyx fracture disability is at the highest allowable rating under his current diagnostic code for the entire period on appeal. 3. Prior to August 21, 2013, the Veteran’s headaches were not manifested by frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 4. From August 21, 2013, the Veteran’s headaches are at the highest allowable rating under his current diagnostic code and his symptoms are adequately encompassed by the schedular criteria. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a disability rating in excess of 10 percent for a service-connected coccyx fracture are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.72, Diagnostic Code (DC) 5299-5298. 3. The criteria for a disability rating in excess of 30 percent prior to August 21, 2013, and in excess of 50 percent thereafter, for service-connected headaches, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1974 to April 1985. These matters were previously before the Board and were remanded for further development in August 2018. The development has been accomplished and the matters are again before the Board. The Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since September 6, 2013. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. 1. An Acquired Psychiatric Disorder. The Veteran contends he has a psychiatric disability that was incurred in and due to his time in service. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition; (2) credible supporting evidence that the claimed inservice stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). Lay testimony alone can establish the occurrence of the claimed in-service stressor in certain circumstances, which include: when PTSD is diagnosed during service and the claimed stressor is related to that service, when the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, when the stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and certain other conditions are met, and when the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience. Id. In other cases, the claimed stressor must be corroborated by credible supporting evidence. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the claims for service connection for PTSD pursuant to Clemons and re-characterized them as shown on the cover page of this decision. In January 2013, the Veteran submitted a statement about his in-service stressors and that to this day, he still has nightmares about his ordeal, along with other events. The Veteran said he couldn’t walk in crowds with people behind him, that he carries protection when out at night, and that he was prone to hyperventilation in crowds. The Veteran has been diagnosed with a mental health disability, to include depression and anxiety, but not PTSD. The Veteran’s service treatment records (STRs) show he complained of and was seen for mental health trouble while in service, to include nervous stomach and general anxiety (See June 1983, March 1985 STRs.) The Veteran had an examination for his mental health in July 2013, and in particular, for PTSD. This examiner opined the Veteran did not meet the criteria for PTSD, but did diagnose the Veteran with depressive disorder. In September 2013, the Veteran was seen for his psychiatric disorder. The examiner said the Veteran was diagnosed with major depressive disorder and anxiety disorder with symptoms of both. However, this examiner did not provide an opinion on etiology. The examiner reviewed the Veteran’s reports of his in-service stressors as well as his social and military and employment history. The examiner also administered a PTSD test and said the results were “significantly above the established cutoff, which indicate that his performance was not consistent with persons diagnosed with PTSD. Rather, his response style was consistent with the test performance of disability claimants simulating symptoms of PTSD.” This examiner also took note of the Veteran’s in-service troubles with depression, worry, and sleeping trouble. The examiner opined it was not likely that the Veteran’s depression and anxiety were related to his military service as the Veteran did not have an ongoing problem with depression or anxiety through the years and he did not seek treatment until he lost his job in 2012. The examiner based this opinion on a review of the Veteran’s file and an in person examination. The examiner found the July 2012 treatment record noting that the Veteran was seen for depression due to losing his job and that was when he noted he had some PTSD symptoms. “Subsequent records showed a diagnosis of PTSD, but no formal assessment” was found. The examiner went on to explain why none of the Veteran’s stressors met all of the criteria for PTSD. The Veteran had another examination for his mental health in November 2019. The examiner opined the Veteran did not meet the criteria for a PTSD diagnosis. The examiner reported the Veteran’s stressors, but did not discuss the findings of an anxiety disorder diagnosis in the Veteran’s STRs. In November 2019, the examiner opined the Veteran’s primary diagnosis was depressive disorder. This examiner reported the Veteran had been previously given a test for PTSD and noted the Veteran’s response style “was consistent with the test performances of disability claimants simulated symptoms of PTSD.” The examiner agreed with the July 2013 examiner who reported that it was not likely that the Veteran’s anxiety with depression were not related to his military service as the Veteran “had not had on-going problems with depression/anxiety through the years, he did not seek any treatment for depression until he lost his job in 2012 and that his depressive disorder diagnosis “appears related to post-military life stressors.” The Veteran’s medical records also indicate he has been treated for his mental health. (See e.g. August 2013, May 2015, June 2017, June, October 2019 treatment records.) These records indicate the Veteran was seen for PTSD and depression, but do not mention where the PTSD diagnosis came from and they do not contain adequate opinions as to the etiology of the Veteran’s mental health diagnoses. Based on the Veteran’s statements and the objective evidence of record, the Board finds that the Veteran’s currently diagnosed mental health problems are not due to his time in service. Multiple examiners have said the Veteran does not have PTSD due to his stated stressors. While the Veteran has said one examiner diagnosed him with PTSD in June 2012, two other examiners have, after a detailed analysis, reported the Veteran does not meet the criteria for PTSD according to the Diagnostic and Statistical Manual of Mental Disorders. Additionally, the objective evidence does not show that the Veteran’s depression and anxiety are related to the depression and anxiety he had in service, but are rather due to other life events, such as losing his job. Also weighing against the Veteran’s claim is the decades that passed without seeking treatment for the mental health conditions he had in service, making it more likely that the Veteran’s mental health disabilities are related to other life events. Therefore, service connection must be denied. The Board has considered the Veteran’s statements, to include his assertions that his acquired psychiatric disorder is related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., depressed mood and anxiety; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the opinion rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 2. A Coccyx Fracture. The Veteran is in receipt of a 10 percent disability rating for a service-connected coccyx fracture during the entire period on appeal. The Veteran’s disability is rated under DC 5299-5298. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The use of the “99” series and hyphenated DCs reflects that there is no specific DC applicable to the disability, and it must be rated by analogy. 38 C.F.R. § § 4.20 (2016). Here, DC 5298 provides a noncompensable rating for removal of coccyx without painful residuals and a 10 percent rating for partial or complete removal with painful residuals. In late 2012 and early 2013, several buddy statements were submitted on behalf of the Veteran. They reference his back and the Veteran’s increasing pain as well as his difficulty sitting. It is unclear as to whether these statements applied to the Veteran’s service-connected low back pain or his coccyx fracture. In order for the Board to make the decision most favorable to the Veteran, the Board has considered symptoms, such as trouble sitting, to be associated with the Veteran’s coccyx fracture disability. The Veteran also submitted a statement in January 2013, saying how he had injured his coccyx and that since that time, the pain had gotten worse and that he had to rely on a walker to get around. The Veteran also reported that “long periods of driving or sitting must be broke up with stretch breaks to compensate for the pain.” The Veteran had an examination for his coccyx disability in November 2019. The examiner noted the Veteran said that his condition continued to cause him pain. The Veteran said that he had shooting pain across his tail bone when he sat and would use heating pads and an air cushion to help with the pain and discomfort. The examiner found the Veteran’s coccyx disability impacted his ability to work because it made it difficult to sit for a prolonged period of time. For the entire time on appeal, the Veteran’s coccyx fracture is currently rated at the highest available rating for the period on appeal and there is no higher rating available. The Board has also considered whether the Veteran’s coccyx disability warrants referral to the Director of Compensation and Pension for extraschedular consideration based on the fact that he appealed this claim when he was already in receipt of the highest allowable rating. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board does not find referral for extraschedular consideration is warranted because the schedular criteria adequately describes the severity and symptoms of the Veteran’s disability (such as pain and painful motion) and doesn’t present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). 3. Headaches. The Veteran contends his headaches are worse than indicated by his rating of 30 percent prior to August 21, 2013 and 50 percent thereafter. The Veteran’s headaches are rated under DC 8100. Under DC 8100, a noncompensable rating is warranted for headaches with less frequent attacks. A 10 percent disability rating is warranted for headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for headaches with characteristic prostrating attacks occurring on average once a month over the last several months. A 50 percent disability rating is warranted for headaches with frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board notes the Veteran is in receipt of the highest available rating for his headaches from August 21, 2013 and therefore, only a higher compensation on an extraschedular basis will be considered. Prior to August 21, 2013, the Veteran’s headaches do not warrant a higher rating as the evidence does not show his headaches resulted in severe economic inadaptability. In a December 2012 headache examination, the Veteran reported taking OTC medication for his headaches, which occurred two to three times per week, lasting two to twenty four hours. The Veteran’s symptoms included sensitivity to sound and light, and changes in vision. The examiner found the Veteran had prostrating attacks more frequently than once per month. The Veteran said he was afraid of being fired if he took too much time from work due to his headaches. The Veteran was seen again for his headaches in January 2013. The examiner noted they were not a sign of some other illness. In a January 2013 statement, the Veteran’s spouse said the Veteran’s headaches had gotten worse and more frequent and that the pain was so bad, they had to call an ambulance to see if it was all a sign of a stroke. The Veteran’s spouse said his headaches affected his ability to do his job as he worked at a computer for eight hours a day. In January 2013, one of the Veteran’s friends reported the Veteran had to take a break for over a year from his duties in the Secular Franciscan Order. However, this was reportedly due to his back condition, with no mention of headaches being the cause. In April 2013, the Veteran reported he had headaches, but that they had improved with medication and one month later, the Veteran said his headaches were treated sufficiently. In a July 2013 treatment note, the Veteran reported he got about three headaches per week that lasted about two days. Clearly, prior to August 21, 2013, the Veteran suffered from frequent headaches that caused him problems in his daily life. However, while the evidence showed the Veteran’s headaches led to difficulty with work, they did not lead to lead to economic inadaptability as the Veteran was still able to perform jobs. Additionally, while several of the Veteran’s statements and buddy statements submitted during this time discussed his difficulty walking, moving, and fulfilling duties, these statements do not reference the Veteran’s headaches as the cause of these problems. Therefore, a higher rating is not warranted for this period on appeal. Turning to the Veteran’s claim for extraschedular consideration for his headaches from August 21, 2013, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a Veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321 (b)(1). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. As noted previously, the Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. The Veteran’s claim was sent to the Director of Compensation for a determination as to whether the Veteran’s headache disability qualified for extraschedular consideration. In October 2020, the Director opined that, based on the evidence of record, there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization, and thus, an extraschedular rating is not warranted. After a thorough review of the Veteran’s record, the Board agrees with the Director’s assessment that extraschedular consideration for the Veteran’s headache disability is not warranted. The Board has considered the Veteran’s medical records as well as the Veteran’s statements. The Veteran’s work history includes a number of different occupations; however the evidence does not reflect hat he left these jobs due to his headaches. See July 2013 PTSD examination. In December 2013, the Veteran said that his headaches led to constant pain, nausea, sensitivity to light and sound, and changes in vision. A VA examiner found the Veteran had prostrating attacks of migraine pain more frequently than once per month and that if he has a bad headache that lasts for days, his concentration was shot, and he had no attention to detail. The Veteran said the pain is so bad he had sometimes “thought about eating a bullet.” The Veteran’s treatment records show he continued to seek treatment for his headaches and that he suffered from a lot of pain frequently. In a March 2014 examination, the Veteran said he had tried medications, but they hadn’t worked on his symptoms of pain, throbbing, vomiting, and sensitivity to light and sound. The examiner stated the Veteran had prostrating headache attacks more frequently than once per month. The Veteran reported he missed 23 days of work in 2013 prior to September when he was put on short-term disabilities and he had not worked since. In October 2017, the Veteran was seen for an acute onset of a headache and was treated for such. The Veteran reported a negative history for increased frequency of headaches and in September 2018, the Veteran reported he hadn’t had recurrent headaches in the past two weeks. In July 2019 and September 2019, the Veteran denied headaches. The Veteran had an examination for his headaches in November 2019. The Veteran described his symptoms of seeing “flashes of lightning,” pain, nausea, sensitivity to sound and light sensitivity that can last from two to four days. The Veteran did not take medication for his condition. The examiner noted the Veteran had prostrating attacks of headache pain once per month. The examiner also reported that the Veteran worked from 2000 to 2012 at a bank doing dispute resolution and that he felt limited in his efficiency due to his headaches. The Veteran was laid off/terminated for reasons other than performance. The examiner explained that due to the Veteran’s symptoms, decreased efficiency in performance would be anticipated and a flexible or home-based schedule would need to be considered. However, the examiner also opined that overall improvement is expected with appropriate and active headache treatment and therefore, long-term occupational impact couldn’t be determined at that time. There is no question that the Veteran’s headaches lead to great pain and discomfort. However, the Board finds that the schedular criteria adequately cover the Veteran’s symptoms such as pain and interference with work. The most probative evidence does not show that the Veteran’s headaches, as bad as they are, lead to such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. The 50 percent schedular rating already considers the effect on his ability to work by considering that the frequency and severity of the Veteran’s headaches lead to economic inadaptability. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding all the above, the Board acknowledges the Veteran’s statements that he believes his mental health disabilities are due to his time in service and that his coccyx and headache disabilities are worse than indicated by his assigned disability ratings. The Board also understands the Veteran continues to seek treatment for these conditions and that they lead to pain, discomfort, problems walking, sitting, and problems in his relationships. However, while the Veteran is competent to report his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as the nature, etiology, severity of his coccyx and headaches, and whether an extraschedular rating is warranted. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board attaches more probative weight to the medical records and clinical findings from the medical professionals who conducted the medical assessments of these conditions. In this case, the most probative evidence of record simply does not show that higher ratings are warranted for any period on appeal or that the Veteran’s mental health problems are due to his time in service. It is important for the Veteran to understand that the medical findings, including the medical examinations which are adequate because the examiners reviewed the Veteran’s file, saw him in person, and offered opinions based on the Veteran’s record, supported by an explanation, provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his conditions are the result of service, providing a highly clear basis for the opinion. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.