Citation Nr: 21030010 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-07 701 DATE: May 17, 2021 ORDER Entitlement to an initial rating of 50 percent and no higher for migraine headaches is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a staged initial rating of 50 percent and no higher for posttraumatic stress disorder (PTSD) prior to September 9, 2014 is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a staged initial rating higher than 50 percent PTSD from September 9, 2014 to April 10, 2019 is denied. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, during the appeal period, his migraines manifest as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. Prior to September 9, 2014, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity. 3. During the period from September 9, 2014 to April 10, 2019, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity, and do not rise to the level of deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent and no higher for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8100. 2. Prior to September 9, 2014, the criteria for a disability rating of 50 percent and no higher for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. During the period from September 9, 2014 to April 10, 2019, the criteria for a disability rating higher than 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2000 to March 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision. A February 2015 rating decision assigned a rating of 50 percent for PTSD effective September 9, 2014. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in August 2019. A transcript of that hearing is of record. A March 2020 Board decision assigned an initial rating of 30 percent and no higher for migraines, and denied entitlement to a rating higher than 30 percent for PTSD prior to September 9, 2014, or a rating higher than 50 percent from September 9, 2014 to April 10, 2019, but granted a 70 percent rating for PTSD from April 10, 2019. The Veteran appealed the portion of the March 2020 decision that denied entitlement to a rating higher than 30 percent for migraines and denied entitlement to a rating higher than 30 percent prior to September 9, 2014 and higher than 50 percent from September 9, 2014 to April 10, 2019 for PTSD to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the contested portions of the Board decision. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 1. Entitlement to an initial rating higher than 30 percent for migraine headaches The Veteran contends that, when one does not take the ameliorative effects of medication into consideration, his migraines are productive of severe economic inadaptability. The Veteran's headaches are rated under DC 8100. Under DC 8100, a 10 percent evaluation is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent evaluation, the maximum available schedular evaluation for headaches is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The phrase "characteristic prostrating attacks" was defined as describing migraine attacks that typically produce powerlessness or a lack of vitality. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The distinction between the 10 and 30 percent disability levels is the frequency of the headaches. A 10 percent rating is warranted when the prostrating headaches occur once every 2 months; 30 percent when the prostrating headaches occur once a month. The 50 percent rating does not specify the frequency of prostrating headaches, but the phrase "very frequent" connotes a frequency greater than once a month. Johnson, 30 Vet. App. at 253. The rating criteria also do not define "severe economic inadaptability." Severe economic inadaptability does not mean a claimant is completely unable to work, and VA conceded that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 440 (2004). A September 2014 VA examination found that the Veteran had no characteristic prostrating attacks of headache pain, and that his headaches had no impact on his ability to work. A January 2019 VA examination noted prostrating attacks once in two months. The examiner found that the Veteran's did not have prostrating and prolonged attacks productive of severe economic inadaptability. The functional impact of the Veteran's headaches was difficulty with concentration during severe headaches. However, the competent lay statements of the Veteran indicate that the Veteran's headaches are more severe than is reflected in the examinations. The Veteran has submitted an August 2014 statement in which he reports that there are times when he cannot work because of his headaches, and that he has taken off work for his headaches. He reported consistently leaving his desk at work because he knows the computer screens affect his headaches. The Veteran has submitted documents indicating that during the period from May to August 2014, he called out sick four days because of headaches, left early one day, and came in late one day. In the August 2019 hearing, the Veteran testified that once a week he will have a headache lasting an hour and a half to three hours, and that he will postpone meetings to deal with the headaches. He also reported that sometimes a coworker must drive him home because he cannot drive when he has a headache. The Board recognizes that the Veteran has not been fired or otherwise penalized in the workplace due to his headaches. However, as is noted above, "productive of severe economic inadaptability" can include symptoms "capable of producing" severe economic inadaptability, even if the Veteran is fully employed. In this case, the Veteran's symptoms cause him to call out sick several times a year, cause him to consistently be away from his desk, and cause him to postpone meetings. Although the Veteran has managed to work successfully in spite of these headaches, the Board notes that headaches that cause one to be away from one's desk on a consistent basis and to postpone meetings are capable of producing economic inadaptability. The amount of time the Veteran finds himself needing to leave his desk, postpone meetings, or even call out sick would likely increase if the Veteran was unable to treat his headaches with medication, although the Board cannot determine the amount of increase without resorting to speculation. The Board notes that, although the Veteran does not seem to have suffered any adverse employment action due to his headaches, a typical employer would not be willing to employ someone who is consistently away from his desk or unable to participate in meetings reliably. Therefore, resolving doubt in the Veteran's favor, the Board finds that it is at least as likely as not that his headaches are productive of severe economic inadaptability. A rating higher than 50 percent is not available in the rating schedule under DC 8100. A higher rating is not warranted because the Veteran's symptoms are contemplated by the rating assigned, which applies to all headache symptoms productive of severe economic inadaptability. 2. Entitlement to a staged initial rating higher than 30 percent for PTSD prior to September 9, 2014 The Veteran contends his PTSD symptoms warrant a higher rating. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating higher than 30 percent during the period from March 17, 2010 to September 9, 2014. The Board concludes that the Veteran's symptoms were productive of a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating, but no higher. 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. The record reflects that prior to September 9, 2014, the Veteran's PTSD results in reduced reliability and productivity. The September 2010 VA examination notes that the Veteran has difficulty staying asleep and difficulty concentrating, among other symptoms. Additionally, a November 2009 treatment note reflects frequent panic episodes characterized by tight chest pains, shortness of breath, dizziness, and an intense feeling of claustrophobia. An August 2014 VA memorandum indicates that the Veteran reported frequent anxiety and panic attacks while on the job. The September 2010 examiner found that the Veteran's symptoms consistently interfere with social and occupational functioning. Therefore, the decrease in work efficiency is more than merely occasional. The Board notes that failure to get enough sleep on a regular basis due to nightmares or other psychiatric symptoms, as well as frequent panic episodes, necessarily reduces one's productivity and reliability. Therefore, the Veteran's symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms do not result in occupational and social impairment with deficiencies in most areas. The Veteran is on his third marriage as reported in the September 2010 examination, and he now isolates and does not participate in social activities. An August 2014 VA memorandum references four marriages. The Veteran's representative has argued that his isolation is consistent with a 70 percent rating. The Board agrees that the Veteran's social isolation and multiple marriages are consistent with a deficiency in the area of social/family relationships. However, the criteria for a 70 percent rating requires functional deficiencies in most areas, not simply one. The Veteran's functional impairment does not suffer from deficiency in most areas. Although the Veteran reported that he has frequent anxiety and panic attacks while on the job in an August 2014 VA memorandum, the September 2010 examination indicates that the Veteran had no problems with his supervisor or coworkers, and did not have disciplinary problems at work. The record does not reflect that during this period he suffered any adverse action at work, as would be expected by a deficient employee. While the Veteran's PTSD symptoms likely reduce the Veteran's productivity and reliability at work, as is consistent with the 50 percent rating assigned, there is no indication that the Veteran was a deficient worker during the period on appeal. The September 2010 examination noted that the Veteran had successfully completed a bachelor's of science and was now in a master's program. There is no indication that the Veteran's PTSD symptoms prevented or substantially hindered him in his education. There is no indication in the record during this period that the Veteran's judgment was so impaired as to be comparable to impaired impulse control such as unprovoked irritability with periods of violence. Therefore, there is no deficiency in the area of judgment or school. Although the Veteran has reported trouble with memory and concentration, a March 2010 treatment note found that the Veteran's performance on an evaluation was not indicative of significant cognitive difficulties. There is no indication of suicidal ideation or similarly troubled thinking. The Board finds that the functional impairment caused by the Veteran's difficulty with concentration and memory is better described as reducing the Veteran's reliability and productivity than as a deficiency in the area of thinking. The Veteran reported irritability and angry outbursts in the September 2010 VA examination, and the Veteran has argued that the panic episodes reported in the November 2009 VA treatment note are comparable to near continuous panic affecting the Veteran's ability to function independently. The focus when rating a psychiatric disability is upon the functional impairment caused by the psychiatric symptoms, not upon enumerating a list of specific symptoms. Therefore, the issue is not whether the Veteran's frequent panic episodes are near constant, but whether they rise to the level of affecting his ability to function independently and effectively and thus cause him to be deficient in the area of mood. The Board has recognized that the Veteran's panic episodes negatively impact his reliability and productivity, but does not find that they affect his ability to function independently, appropriately, and effectively. The examples of impact on functioning given in the November 2009 treatment note are that the Veteran was unable to remain seated in the barber's chair on one instance, and that he had difficulty with panic while preparing for an MRI. The Board recognizes that the Veteran's panic reduces the Veteran's reliability in his ability to pursue activities such as visiting the barber or having an MRI, but the record does not reflect that the Veteran is unable to effectively function in these areas. The September 2010 VA examination noted appropriate hygiene, appearance, and behavior. There are several MRIs of record. Therefore, while the difficulty with panic does reduce his reliability, it does not rise to the level of affecting his ability to effectively or independently function, even in the specific areas of getting his hair cut or getting an MRI. Therefore, the Board finds that the functional impairment caused by the Veteran's panic episodes do not rise to the level of a deficiency in the area of mood. For the foregoing reasons, during the period prior to September 9, 2014, the Veteran's PTSD symptoms result in reduced reliability and productivity, but do not rise to the level of deficiencies in most areas. Therefore, the Board will assign a rating of 50 percent and no higher. 3. Entitlement to a staged initial rating higher than 50 percent for PTSD from September 9, 2014 to April 10, 2019 The Board finds that the record does not reflect that the Veteran is deficient in most areas during the period from September 9, 2014 to April 10, 2019. As discussed in the section above, the Veteran is deficient in the area of family/social relationships, but is not deficient in most areas. The September 2014 VA examination indicates that the Veteran continues to work. The only example of difficulty at work due to PTSD symptoms is that he wants to go into management, but is anxious during interviews. The record does not reflect that the Veteran's PTSD symptoms have caused him to be deficient or ineffective in the performance of his work, even though his anxiety may make it more difficult for him to interview for a promotion and form solid working relationships. This level of impairment is not consistent with a deficiency in the area of work. The September 2014 VA examination indicates that the Veteran has completed his MBA, which means that far from being deficient in the area of school, the Veteran is succeeding. The September 2014 VA examination notably did not check the box indicating impaired judgment. A March 2019 VA treatment note indicates that the Veteran's judgment appeared intact. The record thus does not reflect any deficiency in judgment. The September 2014 VA examination described the Veteran's issues with memory loss as mild, and the March 2019 VA treatment record indicates that the Veteran's memory was intact, and that his thought processes were linear, coherent, and relevant. There was no reference to suicidal or homicidal ideation, or similarly disturbing thoughts. Therefore, there is no evidence during this period of deficiency in the area of thinking. In a March 2019 VA treatment note, the Veteran reported difficulty sleeping and staying asleep in spite of attempts to wind down, as well as nightmares 2-3 times per week, and waves of emotion or mood instability multiple times per day. The Board recognizes that this instability in mood is near-constant, but the record does not reflect that it is affecting his ability to function independently, appropriately and effectively. Therefore, it does not reach the level of functional impairment contemplated by the rating schedule. Moreover, even if the Board resolved doubt in the Veteran's favor and found that the Veteran was deficient in the area of mood due to the effects of anxiety or panic and difficulty sleeping, the Veteran would still not be deficient in most areas, as is needed for a 70 percent rating. For the foregoing reasons, entitlement to a rating higher than 50 percent for the period from September 9, 2014 to April 10, 2019 is be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.