Citation Nr: 21030301 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-22 758 DATE: May 18, 2021 ORDER A rating in excess of 50 percent prior to January 24, 2019, for depressive disorder with anxiety features is denied. A 70 percent rating, but not higher, for depressive disorder with anxiety features from January 24, 2019, to December 4, 2020, is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 70 percent from December 4, 2020, for depressive disorder with anxiety features is denied. A rating in excess of 30 percent prior to January 24, 2019, for migraines is denied. A 50 percent rating, but not higher, for migraines from January 24, 2019, to March 20, 2019, is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 50 percent from March 20, 2019, for migraines is denied. FINDINGS OF FACT 1. For the period from November 16, 2011 to January 24, 2019, the preponderance of the evidence shows the symptomatology of the Veteran's depressive disorder with anxiety features more nearly approximated no more than occupational and social impairment with reduced reliability and productivity. The evidence does not show an inability to establish and maintain effective relationships or neglect of personal appearance and hygiene; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired thinking or judgment, or symptoms of such severity, frequency, and duration as to equate to deficiencies in most areas. 2. From the period beginning January 24, 2019, the preponderance of the evidence shows that the symptomatology of the Veteran's depressive disorder with anxiety features has more nearly approximated occupational and social impairment with deficiencies in most areas; total social and occupational impairment has not been shown. 3. From November 16, 2011 until January 24, 2019, the Veteran's service-connected migraines were manifested by characteristic prostrating attacks occurring on an average once a month, but not productive of economic inadaptability. 4. From January 24, 2019, the Veteran's service-connected migraines have been manifested by characteristic prostrating attacks occurring on average once a month and productive of economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent prior to January 24, 2019 for depressive disorder with anxiety features have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for a rating of 70 percent, but not higher, from January 24, 2019 for depressive disorder with anxiety features have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 3. The criteria for a rating in excess of 30 percent prior to January 24, 2019 for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for a rating of 50 percent, but no higher, from January 24, 2019 for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1988 to May 1990, from January 1994 to February 1999, and from January 2005 to February 2006. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2019 Board hearing. This case was remanded by the Board in January 2019 and May 2019 for further development. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased rating for depressive disorder with anxiety features The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that the Veteran's diagnosed depressive disorder with anxiety features is evaluated under Diagnostic Code 9434 and is rated according to the General Rating Formula for Mental Disorders. Pursuant to the rating formula, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent disability rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. This claim arises from a November 2011 claim for Total Disability based on Individual Unemployability (TDIU). Turning to the evidence of record, a February 2013 VA Mental Disorders Disability Benefits Questionnaire (DBQ) diagnosed the Veteran with depressive disorder with anxiety features. It was noted that the Veteran was currently married with six children in a blended family, and that she had a work history that consisted of operating construction equipment, working in food service, and being a mechanic in the military. She also reported seeking mental health treatment through VA and being prescribed medication for depression. The Veteran's symptoms consisted of depressed mood, anxiety, flattened affect, as well as chronic fatigue and migraines. The examiner found that these symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by medication. The examiner also opined that the Veteran's mental health disorder rendered her limited to repetitive, low to moderate stress employment. VA medical records throughout 2015, 2016, and 2017 consistently noted that the Veteran denied suicidal or homicidal ideation and denied substance abuse problems. Her thoughts were always noted as logical and her insight and judgment seemed intact. Her mood was consistently pleasant and cooperative. She was noted to have clear speech, coherent thoughts, be alert and oriented to time and place, and was said to be goal oriented. In a November 2016 VA report, the Veteran reported worsening depression after the recent loss of her uncle and was described as tearful and open with her issues. She was working part time and had a supportive relationship with her boyfriend whom she was living with at the time. In February 2017, it was noted she was moderately depressed and anxious but made positive statements about her ability to cope with other things adequately. During a January 24, 2019 hearing before the Board, the Veteran described suicidal thoughts, saying they "make me feel like I'm worthless. Sometimes I wish I just was not here." She also noted, however, that she had no plans or actions in this regard. She described hardly leaving home and being unable to maintain friendships and relationships, as well as violent outbursts, an inability to control emotions, and difficulty handling stress. She noted her symptoms had worsened since the prior February 2013 VA Examination. A February 2019 Mental Disorders Disability Benefits Questionnaire (DBQ) diagnosed the Veteran with major depressive disorder. The examiner indicated that this diagnosis resulted in occupational and social impairment with reduced reliability and productivity. During the examination, it was reported that the Veteran had divorced her second husband after learning he molested her twin daughters. She had a relationship with her daughters, though it was difficult. The Veteran lived with a roommate and had good friends who were out of state whom she spoke to once or twice a month. The Veteran's symptoms were found to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and move, and difficulty in adapting to stressful circumstances including work or worklike settings. The examiner described the Veteran as appropriately dressed and groomed and said her mood and affect were within normal limits and she was cooperative and polite. The examiner could not address the frequency of symptoms and flare-ups or functional impairment without speculation due to missing records of treatment. Because the February 2019 examiner was unable to address the frequency of symptoms or functional impairment due to missing records of treatment, the Board again remanded the matter in May 2019 in order to try to obtain those records. Following the receipt of additional treatment records, the Veteran was afforded another VA examination in December 2020. The examiner diagnosed recurrent depressive disorder and generalized anxiety disorder. The examiner stated the Veteran's depressive disorder led to a sad mood (disturbances of motivation and mood), anhedonia, decreased appetite, neglect of personal appearance and hygiene, decrease sleep with nightmares, increased irritability, poor focus and concentration, and isolative behavior (difficulty in establishing and maintaining effective work and social relationships). Her anxiety disorder led to symptoms of increased anxiety (hypervigilance), and increased worrying (difficulty in adapting to stressful circumstances). While the examiner was able to separate out the symptoms attributable to each respective diagnosis, she was unable to do so when evaluating the level of impairment caused by these disorders and indicated that the Veteran's psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran had gone through a divorce from her husband in 2014 and was currently living with a roommate and had a relationship with her children. She was fired from several jobs after having to call out due to her mental and physical symptoms. The examiner described the Veteran as calm and cooperative, however it was noted that she walked while completing the evaluation and did not sit still while talking. The Veteran's mood was noted to fluctuate during the evaluation, and she was dysphoric when talking about painful topics. Her speech was within normal limits, her thought process was linear and goal directed, and her insight and judgment were found to be fair. The examiner stated the Veteran had no suicidal or homicidal ideation. Her symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and neglect of personal hygiene. Additionally, she was noted to have decreased focus and concentration, a decreased appetite, nightmares, hypervigilance, increased irritability, and anhedonia. In weighing the evidence, the Board finds that from November 16, 2011 to January 24, 2019, the evidence is against a rating in excess of 50 percent. During this period, the Veteran's main psychiatric symptoms were depressed mood, anxiety, flattened affect, and migraines. The Veteran denied having any suicidal and homicidal ideation. Additionally, the Veteran remained married for a period during this time, and after her marriage was able to have relationships with a boyfriend, a roommate, and her children. The examiners and medical personnel who examined or treated the Veteran during the prescribed period also indicated that she was fully oriented and demonstrated insight and judgment, as well as clear thought and communication. In addition, at no point during the prescribed period did the severity of the Veteran's psychiatric disability most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In general, the evidence shows that the Veteran's routine behavior, self-care and conversation were normal. Moreover, there is no evidence that her depression associated with depressive disorder impaired her performance of routine activities, her ability to function independently, or her ability to control her impulses. The Veteran also did not exhibit spatial disorientation or obsessional rituals that interfered with routine activities. The depressed mood, anxiety, and flattened affect that the Veteran experienced during this prescribed period are all contemplated by the 50 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The Veteran's migraines are separately service-connected and is assigned its own rating evaluation. Overall, the evidence of record does not show symptoms equivalent in frequency and severity to those associated with a 70 percent rating, nor does it show deficiencies in most areas as a result of such symptoms. Both factors must be present in order to satisfy or more nearly approximate the criteria for a 70 percent evaluation. See Vazquez-Claudio, 713 F.3d at 118; 38 C.F.R. § 4.130, Diagnostic Code 9434. Based upon the Veteran's testimony at her January 24, 2019 hearing before the undersigned VLJ, in which she indicated latent suicidal thoughts and an inability to establish and maintain effective relationships, the Board finds a 70 percent rating, but not higher, is warranted effective of the date of her hearing. For the period beginning January 24, 2019, the Board finds the evidence of record shows that the Veteran is entitled to a rating of 70 percent, but no higher. The criteria for a 100 percent rating are not met at any point. The Veteran's primary symptoms during this period were depressed mood, anxiety, chronic sleep impairment, disturbance in motivation and mood, difficulty in adapting to stressful circumstances, hypervigilance, decreased appetite, anhedonia, irritability, and difficulty in establishing and maintaining effective work and social relationships. These symptoms are all contemplated by the 70 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The evidence of record does not support a finding that the Veteran was totally occupationally and socially impaired. She maintained relationships with her children, her roommate, and spoke around once a month with several friends who lived at a distance. Furthermore, the evidence of record consistently shows she was fully alert and oriented, with linear and goal-oriented thought processes. These facts indicate that the Veteran was not totally socially impaired. See February 2019 and December 2020 VA Examinations. Additionally, the Veteran's documented symptoms for the period do not equate in frequency, severity or duration to total social and occupational impairment. While her symptoms of depression and anxiety could affect her ability to show up to work on time or cause her to miss work, and have caused her to lose jobs, this has been considered in her award of TDIU. For the most part, the Veteran denied suicidal and homicidal ideations, with the notable exception of her January 2019 hearing. Notably, however, she denied any plan to act on these thoughts, such that the Board finds there was no persistent danger of hurting self or others. She did not report memory loss for names of relatives, her own occupation, or her own name. Furthermore, VA treating providers found that the Veteran had normal speech and thoughts and was negative for hallucinations or delusions. Therefore, the evidence of record simply does not support symptoms of such frequency, severity, or duration to warrant a 100 percent disability rating for depressive disorder from January 24, 2019 to the present. 38 C.F.R. § 4.130, Diagnostic Code 9434. There is no reasonable doubt to be resolved in this matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In sum, the Board finds that the preponderance of the evidence is against a disability rating for the Veteran's service-connected depressive disorder in excess of 50 percent from November 16, 2011, to January 24, 2019, and in excess of 70 percent thereafter. 2. Entitlement to an increased rating for migraines This claim arises from a November 2011 claim for TDIU. The Veteran's service-connected migraine disability is rated at 30 percent from November 16, 2011, and 50 percent from March 20, 2019, under Diagnostic Code 8100. Diagnostic Code 8100 provides a zero percent rating for migraine headaches with less frequent attacks. A 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging once per two months, over the preceding several months. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month, over the preceding several months. A maximum 50 percent rating is warranted for very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court quoted Diagnostic Code 8100 verbatim but did not specifically address the matter of what is a prostrating attack. By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Court has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446. From November 16, 2011 to March 20, 2019 the Veteran's service-connected migraine disability is rated at 30 percent. Importantly, treatment records and examination reports during this period do not show migraines productive of severe economic inadaptability. At a February 4, 2013 VA examination the Veteran reported typical headache pain lasting more than two days. The examiner noted frequent prostrating and prolonged attacks but noted the Veteran's headache condition did not impact her ability to work. The Veteran's service-connected migraine disability is rated at 50 percent from March 2019 to present. At the Veteran's January 2019 Board hearing, she described headaches four to five times a week which cause her to be unable to do anything but lay down. She also testified that her headaches had worsened since the prior March 2013 examination. The Board remanded the issue for an updated VA examination, and this was conducted on March 20, 2019. The record states the Veteran was experiencing headaches three to four times a week, which constant pulsating or throbbing head pain, nausea, vomiting, sensitivity to light and sound. The examiner found characteristic prostrating attacks once every month, but not productive of severe economic inadaptability. The matter was again remanded by the Board in May 2019 in order to obtain private neurologist records regarding consultation and treatment for these migraine headaches. The Veteran underwent another VA examination on January 27, 2021, which noted the Veteran was currently experiencing headaches three to four times a week lasting a couple of days. There were characteristic prostrating attacks at least once every month but was not productive of severe economic inadaptability. The examiner noted headaches lasting more than two days, with prostrating attacks at least once a month. Further, the examiner noted prolonged attacks productive of severe economic inadaptability. A January 2021 rating decision by the Regional Office granted a 50 percent rating for the Veteran's migraines, effective March 20, 2019, the date of the Veteran's VA examination. However, the Board finds the 50 percent rating is warranted from January 24, 2019, the date of the Board hearing as she testified to having prostrating attacks at least once a month, which reflected an inability to work and was confirmed by the March 2019 and January 2021 VA examinations. (Continued on the next page) A 50 percent rating for migraines under Diagnostic Code 8100 is the highest rating allowed for migraines. Therefore, a higher rating is not warranted. Since January 24, 2019, the Veteran's headache disability has been assigned a 50 percent rating, which is the maximum schedular rating available for migraine headaches. Here, the record does not show or suggest that the rating criteria are inadequate for rating the Veteran's headache disability, to warrant referral for consideration of an extra-schedular rating. The effects of her disability are contemplated by the criteria for the 50 percent schedular rating assigned. Therefore, the schedular rating criteria are not inadequate, and referral for consideration of an extra-schedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, Angela L. 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.