Citation Nr: 21026671 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-44 770 DATE: May 3, 2021 ORDER As the Veteran's substantive appeal via VA Form 9 was timely filed as to a September 2015 Statement of the Case (SOC), reinstatement of the underlying appeal for entitlement to increased ratings for posttraumatic stress disorder (PTSD), migraine headaches, and a back disability is granted. Entitlement to an initial 50 percent rating for migraine headaches is granted. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for an eating disorder claimed as anorexia nervosa is remanded. Entitlement to a rating in excess of 30 percent prior to August 7, 2015, and in excess of 70 percent thereafter for PTSD is remanded. Entitlement to a rating in excess of 20 percent prior to August 7, 2015, and in excess of 40 percent thereafter for lumbar spondylosis at L4-5 & L5-S1 (lumbar spine disability) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) from July 26, 2011 to August 7, 2015 is remanded. FINDINGS OF FACT 1. The record is adequate to rebut the presumption of regularity in the mailing of the September 2015 SOC. 2. For the entire appeal period, the Veteran's migraine headaches have been equivalent in nature and severity to frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, especially when considered without regard to the ameliorative effects of medication. CONCLUSIONS OF LAW 1. The criteria for a timely filed VA Form 9 (substantive appeal) as to the September 2015 SOC are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. 2. Since July 26, 2011, the criteria for an initial 50 percent disability rating for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2007 to August 2007 and from June 2008 to June 2009, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012, September 2012, and September 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a Board hearing on his November 2015 VA Form 9. However, as a May 2019 letter from the Veteran's attorney specifically requested that a written brief be considered in lieu of a Board hearing, his hearing request was properly withdrawn. 38 C.F.R. § 20.704(e). In July 2019, the Board remanded the appeal for further development and for referral to the Director of VA's Compensation Service (Director) for consideration of an extraschedular TDIU. Initial Matters As an initial matter, the Board notes that the Veteran's representative has submitted statements consisting of pages of boilerplate language that is not in any way specific to the Veteran's appeal, including a general assertion that he preserves for appeal "all legal errors, errors in fact-finding, failure to follow VA Adjudication Manual M21-1, failure to discharge the duty to assist, failure to apply the doctrine of reasonable doubt, and other due process errors." See, e.g. November 2015 Notice of Disagreement (NOD). Such vague, unspecific assertions of general due process errors do not amount to a specific procedural argument in this case and thus need not be addressed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the claimant fails to raise them before the Board). Timeliness of a Substantive Appeal 1. As the Veteran's substantive appeal via VA Form 9 was timely filed as to a September 2015 SOC, reinstatement of the underlying appeal for entitlement to increased ratings PTSD, migraine headaches, and a back disability is granted. In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A claimant must file a notice of disagreement (NOD) within one year from the date that notice of a rating decision is mailed; otherwise, the rating decision will become final. 38 C.F.R. §§ 20.302 (a), 20.1103. If a timely, valid NOD is filed in response to a rating decision, that rating decision cannot be considered a final decision; instead, the claim it decided will remain pending until VA re-adjudicates it in a statement of the case (SOC). Then, a substantive appeal (VA Form 9) must be filed either: (a) within 60 days from the date on which the AOJ mailed the SOC to the Veteran; or (b) within the balance of the one-year period following the date of mailing of the rating decision, whichever period ends later. 38 C.F.R. § 20.302(b). If the Veteran does not file a timely VA Form 9, then the underlying rating decision (not the SOC) becomes final. 38 C.F.R. § 20.1103. For the purpose of determining whether a VA Form 9 was timely filed, the date stamped on the notification letter is presumed to be the same as the date the letter of notification of the SOC was mailed. 38 C.F.R. § 20.302(b). Additionally, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations; for purposes of this appeal and in accordance with the presumption of regularity, this means that, if notice is sent to the Veteran's last known address of record, it will be presumed that VA properly discharged its official duties. Significantly, the Veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA's regular mailing practices were not followed in his case; in this regard, the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. Crain v. Principi, 17 Vet. App. 182, 188 (2003). An "assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process." Jones v. West, 12 Vet. App. 98, 102 (1998). If the Veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Here, the Veteran's attorney asserts that the VA Form 9 dated November 25, 2015 should be considered timely as he did not receive the September 2015 SOC. See November 2015 Email Correspondence and December 2015 Third Party Correspondence. The Veteran was granted service connection for PTSD in a May 2012 rating decision and assigned a 30 percent rating, effective July 26, 2011. In a September 2012 rating decision, he was granted service connection for migraine headaches and a back disability and assigned noncompensable and 20 percent ratings, respectively, effective July 26, 2011. The Veteran filed a timely notice of disagreement (NOD) in March 2013 and was provided a statement of the case (SOC) on September 22, 2015, where he was awarded a schedular TDIU, an increased 70 percent rating for PTSD, an increased 50 percent rating for migraine headaches, and an increased 40 percent rating for a back disability, all effective from August 7, 2015. The Veteran's attorney attempted to perfect the appeal on November 25, 2015, by filing a VA Form 9. The Veteran's attorney asserts that he did not receive the SOC, and as such the VA Form 9 should be considered timely. The Board agrees for reasons outlined below. Initially, the November 25, 2015 Form 9 was filed beyond the period allotted for filing a timely appeal (within 60 days from the date on which the AOJ mailed the SOC to the Veteran or within the balance of the one-year period following the date of mailing of the rating decision, whichever period ends later). The Board notes that the SOC was properly addressed and mailed to the Veteran's last known address of record at that time. See September 2015 SOC. Normally, the mere assertion of the Veteran's attorney that he did not receive the SOC would not be sufficient to overcome the presumption of regularity. However, and critically, the SOC did not copy the attorney's name or the address on the form. Instead, the form states: AGENT OR PRVT ATTY-EXCLUSIVE CONTACT NOT REQUESTED. See September 2015 SOC. Additionally, in November 2015 and December 2015 Correspondences, the attorney specifically stated that he never received the September 2015 SOC, a statement that was acknowledged and accepted by RO staff. See November 2015 Email Correspondence and December 2015 Third Party Correspondence. Based on the above-cited evidence, the Board finds sufficient evidence to rebut the presumption of regularity that VA mailed the SOC to the Veteran's attorney. Thus, the Board finds that the Veteran's Form 9 should be treated as timely filed. As such, the appeal of the timeliness issue is granted, and the appeal of the underlying claims for increased ratings for PTSD, migraine headaches, and back disability is hereby reinstated. Increased Rating General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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. See 38 C.F.R. § 4.7. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. 2. Entitlement to an initial 50 percent rating for migraine headaches is granted. I. Rating Criteria The Veteran's headaches are rated pursuant to DC 8100. 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, a noncompensable rating is warranted for migraine headaches with less frequent attacks. A 10 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent disability rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent disability rating is warranted for migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. II. Analysis The Veteran is currently assigned a noncompensable rating from July 26, 2011 and a 50 percent rating from August 7, 2015, for his service-connected migraine headaches. The appeal period before the Board is from July 26, 2011, the date of award of service connection for his migraine headaches. In a June 2012 VA examination report, the Veteran reported a history of headaches right or left temporal with maximum build up within a half an hour associated with nausea and vomiting, at times occurring two to four times per month and lasting several hours to one to two days. He also reported previously being treated in service with morphine and Imitrex for his headaches. The VA examiner noted medications are necessary for the treatment of the Veteran's headaches, namely Vicodin and NSAIDs. The examiner noted pulsating or throbbing head pain on both sides of his head lasting anywhere from less than one day to more than two days accompanied by an olfactory smell with the headaches. Nausea, vomiting, and sensitivity to light and sounds were listed as symptoms of his headaches. The examiner indicated no prostrating attacks and his headache disability did not impact his ability to work. The examiner characterized his headaches as moderately severe migraine headaches. The Veteran was afforded another VA examination in August 2015. He reported a not working since discharge due to his headaches and back pain. The VA examiner noted medications are necessary for the treatment of the Veteran's headaches, namely Depakote daily at 1000 mg. The examiner noted pulsating or throbbing head pain on both sides of his head that worsens with physical activity and lasting one to two days. Nausea, vomiting, and sensitivity to light, sound, and smell were listed as symptoms of his headaches. The examiner indicated prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. The examiner noted his ability to work is impacted. In a May 2019 statement, the Veteran's attorney maintained that symptoms from his migraine headaches were similar at both his VA examinations. Upon consideration of the evidence of record, the Board finds that the Veteran's migraine headache disability has more nearly approximated the criteria for a 50 percent disability rating under DC 8100 for the entire appeal period. In so finding, the Board notes that neither the rating criteria nor the United States Court of Appeals for Veterans Claims (Court) has defined "prostrating." However, "prostration" is defined as "extreme exhaustion or powerlessness," (Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007)), or as "physically or emotionally exhausted," Webster II New College Dictionary 889 (3rd ed. 2001). In the instant case, although it appears the frequency of the Veteran's headaches has increased during the pendency of his claim, the reported nature and severity, to include associated symptoms, has been relatively consistent. The Veteran has reported having persistent headaches, occurring two to four times per month and lasting up to two days, which the June 2012 VA examiner noted were moderately severe in nature and that the August 2015 VA examiner noted were prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability and impacted his ability to work. The Veteran's headaches are also accompanied by nausea, vomiting, and sensitivity to light, sound, and smell. Furthermore, it is clear that the Veteran regularly takes medications to manage his headaches, and they are not always effective in relieving his headache pain. Notably, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As DC 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's headaches, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. In this regard, the June 2012 VA examiner classified his headaches as not prostrating. However, it is not clear whether they considered the ameliorative effect of his using various pain medications in making their assessment of the nature, frequency, and duration of his headaches. Overall, the Board finds that when resolving reasonable doubt in the Veteran's favor and considering the relief provided by medication, his headaches are more aptly described by the criteria for a 50 percent rating, which is the highest schedular rating available under DC 8100, for the entire appeal period, or from July 26, 2011. To this end, the Board need not discuss his entitlement to a higher rating, including extraschedular consideration (see May 2015 Third Party Correspondence), as the Veteran is now in receipt of the maximum rating allowed for the entire appeal period. REASONS FOR REMAND 3. Entitlement to service connection for GERD, to include as secondary to service-connected PTSD and/or migraines, is remanded. Pursuant to the Board's July 2019 remand directives, the Veteran was afforded a VA examination in November 2019. However, the examiner failed to provide an adequate direct opinion by relying solely on unremarkable STRs. See Dalton v. Nicholson, 21 Vet. App. 23(2007) (holding that a VA examination was inadequate because the examiner relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). Moreover, in a May 2015 statement, the Veteran's attorney indicated his GERD could be a result of toxic smoke inhalation and in a September 2015 VA Form 21-2507a, VA conceded the Veteran's exposure to burn pit toxins during his Iraq service. To this end, there is no opinion of record that addresses this theory of entitlement. Thus, on remand and addendum opinion is warranted from a different examiner to adequately address direct and secondary service connection. 4. Entitlement to service connection for a cervical spine disability is remanded. 5. Entitlement to service connection for an eating disorder claimed as anorexia nervosa is remanded. Pursuant to the Board's July 2019 remand directives, the Veteran was afforded VA a VA examination in November 2019. The Board asked the examiner: (a) Does the Veteran have a current diagnosis of cervical spine disc herniation? If the answer to (a.) is yes, did the Veteran's cervical spine disc herniation have its onset during service, or is it otherwise related to service? However, the examiner failed to answer this question as specifically requested by the Board and relied on lack of documentation of complaints or injuries in the Veteran's STRs and provided insufficient rationale when rendering a negative opinion. See Dalton, 21 Vet. App. 23. Thus, this opinion is inadequate. For these reasons, a new VA examination is needed from a different examiner on remand to ensure substantial compliance with the Board's July 2019 remand directives and to adequately address direct service connection. Stegall v. West, 11 Vet. App. 268 (1998). Any outstanding treatment records should also be secured. In this regard, as the evidence of record does not show a current diagnosis of anorexia nervosa, action on this claim is deferred pending this development. 6. Entitlement to a rating in excess of 30 percent prior to August 7, 2015, and in excess of 70 percent thereafter for PTSD is remanded. Remand is necessary for issuance of a Supplemental Statement of the Case (SSOC), as the Veteran underwent a relevant VA examination in April 2021, after the most recent October 2020 SSOC. 38 C.F.R. § 20.1305(c). 7. Entitlement to a rating in excess of 20 percent prior to August 7, 2015, and in excess of 40 percent thereafter for lumbar spine disability is remanded. The Veteran was afforded VA back examinations in June 2012 and August 2015. However, the examinations are insufficient in light of recent decisions in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Correia, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. Additionally, in Sharp, the Court affirmed that in order for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion regarding functional impairment and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Further, the Court in Sharp notes that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has "considered all procurable and assembled data" and offered a basis for this conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects "the limitation of knowledge in the medical community at large," as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. Thus, on remand a current VA examination that complies with Correia and also adequately address functional loss is warranted. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 8. Entitlement to a TDIU from July 26, 2011 to August 7, 2015 is remanded. As this claim is inextricably intertwined with the above issues, action on this claim is deferred pending the above development. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. 3. Obtain an addendum opinion from a VA examiner other than the November 2019 VA examiner to determine the etiology of the Veteran's GERD. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner should address the following: (a) Whether it is at least as likely as not (50 percent probability or greater) that diagnosed GERD (see November 2019 VA examination reports) was incurred during service or is otherwise related to service, to include as a result of a conceded exposure to burn pit toxins during his Iraq service. Please discuss whether a nexus between GERD and such exposures is "medically plausible." (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD is proximately due to his service-connected PTSD and/or migraines, to include as a result of any medications used to treat the same? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD has been aggravated (worsened) his service-connected PTSD and/or migraines, to include as a result of any medications used to treat the same? In addressing questions (b) and (c), the examiner is advised that two separate opinions are necessary for each disability: one for proximate causation and one for aggravation for each primary disability. The examiner should note that primary disability (PTSD and migraines) need not be service-connected, or even diagnosed, when the secondary disability (GERD) is incurred and reliance on this fact will render the opinion inadequate. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an appropriate VA examination with an examiner other than the November 2019 examiner to determine the nature and etiology of his cervical spine disability. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran the examiner should address the following: (a) Does the Veteran have a current diagnosis of cervical spine disc herniation? If no diagnosis is warranted, reconcile your finding with diagnosis of the same in a July 2012 VA examination report. (b) If the answer to part (a) is yes, it is at least as likely as not (50 percent probability or greater) that his cervical spine disc herniation had its onset in or is otherwise related to service. In addressing this question, please concede the Veteran's reports of continuous neck pain since service and determine whether a nexus between his neck disability and service is "medically plausible" based on the same. Please do not rely solely on the absence of evidence in the Veteran's STRs to provide a negative opinion and provide a complete rationale. (c) For diagnosed intervertebral disc syndrome (IVDS) (see November 2019 VA examination report) is it at least likely as not (50 percent probability or greater) that his IVDS had its onset in or is otherwise related to service. In addressing this question, please concede the Veteran's reports of continuous neck pain since service and determine whether a nexus between his neck disability and service is "medically plausible" based on the same. Please do not rely solely on the absence of evidence in the Veteran's STRs to provide a negative opinion and provide a complete rationale. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Then schedule the Veteran for a VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner is asked to address the following: (a) Please provide an opinion as to the full range of motion of the Veteran's back in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's back disability, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion and indicate whether such impairment is equivalent to ankylosis. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran", what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A full and complete rationale must be provided for all opinions expressed. If unable to opine without speculation, please provide a rationale for this conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.