Citation Nr: 21030395 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-30 295 DATE: May 18, 2021 ORDER An initial disability rating in excess of 70 percent for major depressive disorder is denied. Prior to August 7, 2015, an initial disability rating in excess of 30 percent for migraine headaches is denied. Since August 7, 2015, an initial disability rating of 50 percent, but no higher, for migraine headaches is granted. An initial compensable rating for erectile dysfunction is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to December 3, 2020 is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or on account of being housebound due to service-connected disabilities is remanded. THE VETERAN'S CONTENTIONS The Veteran contends that his symptoms of major depressive disorder more closely approximate total occupational and social impairment, and therefore a 100 percent rating is warranted. See October 2015 Brief. In November 2015, the Veteran contended that he suffered from moderate migraines more than 13 times per month and more severe migraines six to seven times per month. He asserted that his migraines lasted 12 to14 hours, and that he had a migraine for two days and had to seek emergency treatment. He stated that he typically took medication, remained in bed, stayed in the dark, and placed a heating pad behind his head to reduce or counter the swelling of the nerve that runs from the back of his head over his eyes. He stated that his vision became blurry and he could not lift his head, and that most times he could not function or go to work with a migraine. He took propranolol on a daily basis, Flexeril, sometimes ibuprofen. He asserted that, even with the medications, the migraines continued to occur countless times each month and varied from moderate to excruciating pain. He stated that in July 2015, he had a migraine which lasted 13 days and included vomiting. He was treated at the VA hospital and referred to a private pain management specialist, T.A., who has provided him stem cell treatment for his migraines, which has decreased his migraines since October. See November 2015 statement in support of claim. In regard to erectile dysfunction, the Veteran contended that he used the maximum dose of medication prescribed by his urologist at the VA and can only function less than 70 percent. See October 2015 statement. He asserted that this destroyed his previous marriage and was threatening his present marriage. Id. In regard to employment, the Veteran reported that he last worked full time on April 19, 2017. See December 2020 VA Form 21-8940. He contended that his service-connected major depressive disorder and migraine headaches prevent him from securing or following any substantially gainful occupation. See December 2020 and September 2017 VA Form 21-8940. His reported that last position was as a bus driver and doing maintenance from April 2011 to April 2017 for 20 to 25 hours per week. See December 2020 VA Form 21-8940. He noted that the job took a toll on him and was physically demanding as he performed various maintenance tasks which required heavy lifting and walking, assisting with kitchen duties and meal preparation (which required four to five hours of standing), and driving a bus. See October 2015 statement in support of claim. He contended that his supervisor, who is married to a Veteran, made significant accommodations for him. See October 2015 Brief. He believes that his supervisor's sympathy for his condition is the only reason he was employed. See October 2015 statement in support of claim. He stated that he has the ability to take off every other Friday to attend various medical appointments and sick days when his migraines are severe. See October 2015 statement in support of claim; October 2015 Brief. The Veteran also seeks entitlement to SMC based on aid and attendance or on account of being housebound. See November 2018 notice of disagreement (NOD). FINDINGS OF FACT 1. The Veteran's major depressive disorder is productive of occupational and social impairment with deficiencies in most areas. Total occupational and social impairment have not been demonstrated. 2. Prior to August 7, 2015, the Veteran experienced characteristic prostrating attacks of migraine headaches no more than two times per month. The preponderance of the evidence does not demonstrate that the Veteran's headaches are productive of severe economic inadaptability prior to August 7, 2015. 3. Since August 7, 2015, the Veteran has had very frequent completely prostrating and prolonged migraine headache attacks, which are productive of severe economic inadaptability. 4. The Veteran's erectile dysfunction manifests with loss of erectile power, but without visible deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for major depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, DC 9434. 2. Prior to August 7, 2015, the criteria for a disability rating in excess of 30 percent for migraine headaches are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8100. 3. Since August 7, 2015, the criteria for a disability rating in excess of 50 percent for migraine headaches are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8100. 4. The criteria for a compensable rating for erectile dysfunction are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.115b, DC 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from October 1974 to December 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from April 2012, August 2014, and October 2018 rating decisions by the Agency of Original Jurisdiction (AOJ). The Veteran has requested that his case be advanced on the docket due to severe financial hardship. See February 2018 correspondence. The motion to advance the case on the docket is granted. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902. In March 2016, the issues of entitlement to an initial disability rating in excess of 70 percent for major depressive disorder, an initial disability rating in excess of 30 percent for migraine headaches, an initial compensable rating for erectile dysfunction, and entitlement to TDIU were remanded by the Board. In January 2021, the issue of entitlement to SMC based on the need for aid and attendance or on account of being housebound was remanded by the Board. 1. Major depressive disorder The Veteran's major depressive disorder is currently rated 70 percent disabling under 38 C.F.R. § 4.130, DC 9411. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned 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 worklike setting), inability to establish and maintain effective relationships. 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, memory loss for names of close relatives, own occupation or own name. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board finds that the evidence does not support a 100 percent rating as total social impairment has not been demonstrated. In regard to occupational impairment, at the May 2008 VA examination, the Veteran reported that he was working in maintenance department at a hotel. He reported that problems related to occupational functioning included decreased concentration, increased absenteeism, increased tardiness, and memory loss. At the June 2012 VA examination, the Veteran reported that he was working part-time as a government employee, cleaning office buildings at a military base in Miami and had been there for three months. He reported that prior to that he worked at Home Depot for 14 months. At the August 2017 VA examination, the Veteran reported that he worked part time for Southern Command as a driver and in maintenance for the preschool. With regard to employability, the examiner determined that, due to Veteran's low frustration tolerance, irritability and hypervigilance associated with his service-connected mental health condition, he could not serve in any position requiring frequent or prolonged contact with the general public. He would also have difficulty working in any environment that could become crowded and he would need to work in a flexible environment where he could leave for short periods of time to calm his nerves as necessary. His employers would need to be understanding of his significant mental health symptoms and multiple medical appointments and provide him with leniency with regards to attendance. Furthermore, due to Veteran's impaired attention span and forgetfulness, he would likely have difficulty working in an environment where he is unsupervised for long periods of time and he may require additional time to complete tasks or learn new skills. He noted that the Veteran may be able to tolerate ordinary work pressures; however, excessive workloads, quick decision making, rapid changes, and multiple demands in the workplace should be avoided. At the January 2021 VA examination, the Veteran reported that he was unemployed. It is unclear when the Veteran stopped working, but the evidence shows that the Veteran was able to work full time until August 2012; and part time until, at least, August 2017. Total social impairment is not shown by the evidence of record. At the May 2008 VA examination, the Veteran reported that he was divorced, but that he had a good relationship with his children and brothers. At the June 2012 VA examination, the Veteran reported that he had married and divorced twice and that he had marital conflict, verbal altercations, and frequent arguments with his current wife due to his mood and short temper. However, he reported that he had good communication with his older children and that they visited him often. At the August 2017 VA examination, the Veteran reported that he and his third wife of 11 years separated in June 2017 and were pursuing a divorce. He stated that he lived with his 22-year-old son. He reported good relationships with his eight children and a great relationship with one brother. He described his relationship with his other brother as distant. He reported three close friends, but none that live locally and that he rarely participated in social activities and did not like crowded places. At the January 2021 VA examination, the Veteran reported that he was divorced and that his three children from his last marriage live with their mother, but that he sees them every other weekend. The Veteran stated that his five adult children live close by and take turns checking in on him to see if he needs help with anything. He asserted that he did not participate in social activities, had difficulty trusting other people, and described himself as a loner. He reported that he had a few friends from the military that he spoke with on a daily basis and that they live nearby and sometimes visit. In light of the Veteran's contentions and the aforementioned evidence, the Board finds that the Veteran's major depressive disorder is productive of deficiencies in most areas and total occupational impairment for part of the appeal period; however, it is not productive of total social impairment during the appeal period. Accordingly, the Board finds that an evaluation higher than 70 percent is not warranted. 2. Migraine headaches The Veteran's migraine headaches are currently rated 30 percent disabling from June 15, 2007, and 50 percent disabling from August 16, 2017 under 38 C.F.R. § 4.124a, DC 8100. Under DC 8100, A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. Notably, the rating criteria do not define "prostrating". According to Dorland's Illustrated Medical Dictionary 1554 (31st ed. 2007), "prostration" is defined as "extreme exhaustion or powerlessness." Similarly, the term "productive of severe economic inadaptability" is not defined by VA regulations. However, the Court has stated that this term is not synonymous with being completely unable to work, and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Moreover, 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). Prior to August 7, 2015 At the May 2008 VA examination, the Veteran reported severe headaches once per month, which lasted two to three days during which time he has nausea and can't function. He stated that this used to occur less often, one every two to three months. He took Naprosyn, Tylenol with codeine, and cyclobenzaprine. The evidence shows that the Veteran continued to suffer from migraine headaches, and that he started propranolol in July 2014. The Board acknowledges the Veteran's report of a severe migraine which lasted 13 days and included vomiting in July 2015. However, there is no evidence that the Veteran's headaches occurred more than once per month prior to August 7, 2015. Further, the evidence shows that the Veteran continued to work part time as a school bus driver until, at least, April 19, 2017. The evidence does not show that the Veteran had very frequent completely prostrating and prolonged attacks of migraine headaches which were productive of severe economic inadaptability prior to August 7, 2015. Accordingly, a rating in excess of 30 percent for migraine headaches is not warranted prior to August 7, 2015. Since August 7, 2015 An August 7, 2015 VA treatment record shows that the Veteran experienced headaches two to three times per month and was taking propanol. As noted above, in November 2015, the Veteran contended that he suffers moderate migraines more than 13 times per month and more severe migraines six to seven times per month. He asserted that his migraines lasted 12-14 hours at a time. A 50 percent rating is warranted for migraine headaches since August 7, 2015. This is the maximum rating under DC 8100. 3. Erectile Dysfunction The Veteran's erectile dysfunction associated with major depressive disorder is currently rated noncompensable pursuant to DC 7599-7522. 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 additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that an unlisted erectile dysfunction disability, under DC 7599, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected erectile dysfunction is rated by analogy) is penis, deformity, with loss of erectile power, which is evaluated under 38 C.F.R. § 4.115b, DC 7522. A 20 percent evaluation is the only compensable rating assignable under this diagnostic code. In order to be assigned a 20 percent evaluation, two distinct elements are required: the Veteran must have a penile deformity and there must be evidence of loss of erectile power. Id. There is no evidence of penile deformity. See August 2014 VA examination; VA treatment records. The Board has considered whether the Veteran is entitled to a compensable rating under additional potentially applicable diagnostic codes. However, there is no evidence of any penis removal or penis removal of glans, or testis atrophy or removal, shown at any time during this appeal. 38 C.F.R. § 4.115b, DCs 7520-7524; August 2014 VA examination. Given the absence of a deformity of the penis, the weight of the evidence is against the claim and a compensable schedular rating for erectile dysfunction is not warranted. REASONS FOR REMAND 1. TDIU When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, the Veteran was awarded TDIU effective December 3, 2020. As the Veteran's claims for an increased rating for major depressive disorder and migraine headaches are on appeal before the Board, the Board finds that entitlement to TDIU is part of these claims. As such, entitlement to TDIU prior to December 3, 2020, dating back to the Veteran's June 15, 2007 claims remains on appeal before the Board. The Veteran's major depressive disorder is rated 70 percent disabling since June 15, 2007. Accordingly, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) throughout the appeal period. However, it is unclear when the Veteran stopped working. In the Veteran's December 2020 VA Form 21-8940, he reported his last employment on April 19, 2017. However, the Veteran's August 2017 VA headaches and mental disorders examinations show that he continued to work part time and a December 2017 VA treatment record notes that he was employed at that time. A September 2017 response to request for employment information from the Veteran's most recent employer noted that he was working at that time. In December 2020 and January 2021, the RO requested information from the Veteran's most recent employer, U.S. Southern Command. However, a response was not received. The RO should request that the Veteran submit an update VA Form 21-8940 clarifying his last date of employment and request that the Veteran submit evidence (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting his employment and marginal employment, if any, due to his service-connected disabilities. This should include evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. 2. SMC SMC is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. Entitlement to SMC based on the need for aid and attendance or on account of being housebound is remanded as it is inextricably intertwined with the adjudication of the remanded claim for entitlement to TDIU. The matters are REMANDED for the following action: Request that the Veteran complete a VA Form 21-8940 and submit evidence to VA (e.g., pay stubs, W2 Forms, tax returns, letters from employers, etc.) documenting his employment, hours worked, and pay, so that the Board can determine whether the Veteran is currently employed; and if so, whether his employment may be considered marginal for any portion of the appeal period. The information requested should include any evidence showing that the Veteran's employment is in a protected environment such as a family business or sheltered workshop. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.