Citation Nr: 21030844 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-13 381 DATE: May 19, 2021 ORDER Prior to December 4, 2019, an initial 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Throughout the appeal, that is from December 4, 2019, an initial 100 percent rating for PTSD is denied. Entitlement to service connection for migraine headaches (also claimed as dizziness), to include as secondary to service-connected PTSD and sleep apnea, is denied. REMANDED Entitlement to service connection for benign prostatic hyperplasia (BPH), to include as secondary to PTSD and sleep apnea, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 4, 2019, is remanded. FINDINGS OF FACT 1. Throughout the pendency of the appeal, that is, to include the period prior to December 4, 2019, the Veteran's service-connected PTSD have resulted in no more than occupational and social impairment in most areas. 2. The preponderance of the evidence is against finding that migraine headaches were incurred as a result of an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Prior to December 4, 2019, the criteria for an initial 70 percent rating 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, Diagnostic Code (DC) 9411. 2. From December 4, 2019, the criteria for a disability rating in excess of 70 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 3. The criteria for entitlement to service connection for migraine headaches (also claimed as dizziness), to include as secondary to service-connected PTSD and sleep apnea, have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to July 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the RO, in pertinent part, increased the Veteran's rating for PTSD to 70 percent and granted a TDIU, effective December 4, 2019. The Veteran filed a supplemental claim for an earlier effective date of the 70 percent rating for PTSD, which was granted in a May 2020 rating decision. In April 2021, the RO issued a decision denying an increased rating. The RO treated the supplemental claim as a new claim for an increased rating for PTSD and only considered the new evidence of record. The claim for an initial increased rating is still before the Board and will be adjudicated herein. Regarding the issue of entitlement to a total disability rating based on individual unemployability, TDIU was granted by the RO in a May 2020 rating decision effective December 4, 2019. In this case, TDIU was raised by the record as part of the Veteran's claim for an increased disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While TDIU was ultimately granted, it was not granted for the entire period for consideration and remains on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Increased rating for PTSD The Veteran seeks an initial rating for PTSD in excess of 50 percent prior to December 4, 2019, and in excess of 70percent thereafter. For the reasons set forth below, the Board concludes that the Veteran's PTSD resulted in social and occupational impairment in most areas throughout the appeal, to include prior to December 4, 2019, but at no time during the appeal period did the Veteran's symptoms result in total social and occupational impairment. Legal Criteria 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). 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. Analysis The Veteran, through his attorney, asserts that throughout the pendency of the appeal, his PTSD has manifested with symptoms such as suicidal ideation (Statement, April 22, 2021) difficulty adapting to stressful circumstances (including work or work like settings), inability to establish and maintain effective relationships, and impaired impulse control with unprovoked irritability and periods of violence and is therefore entitled to a higher disability rating. See March 2018 Notice of Disagreement (NOD). Prior to December 4, 2019 The Board finds that throughout the appeal the Veteran's service-connected PTSD has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation. Throughout the appeal, the Veteran has reported symptoms such as depressed mood; anxiety; and chronic sleep impairment; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances (including work or worklike settings); suicidal ideation; distressing dreams; hypervigilance; flashbacks; exaggerated startled response; isolative tendencies; increased appetite; fatigue; irritability; and auditory hallucinations. In an April 2021 statement, the Veteran credibly reported that these symptoms have been present throughout the pendency of the appeal, that is, to include the period prior to December 4, 2019. Despite the June 2017 and January 2018 VA examiners' opinions that the Veteran's PTSD results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the Board finds that the Veteran's symptoms, chiefly his suicidal ideation, are suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Indeed, the Board's determination with statements from the Veteran's treating counselor, wherein he too reports suicidal ideation. For these reasons, the Board finds that an initial 70 percent rating, is warranted for the Veteran's service-connected PTSD throughout the appeal, to include the period prior to December 4, 2019. It is undisputed that the Veteran's PTSD results in serious occupational impairment; however, as a 100 percent rating for a psychiatric disorder requires both total occupational and social impairment, this case turns on the presence of total social impairment. In this case, the Board finds that the Veteran's PTSD does not result in total social impairment. Even though the Veteran has reported that he does not have friends, it is undisputed that he has been married throughout the pendency of the appeal. In the face of such a close, longstanding social relationship, the Board cannot reach a finding of total social impairment. Moreover, to reach a finding of total social impairment, the evidence would need to show that the Veteran did not have and close relationships, such as that he shares with his wife. Therefore, because the evidence shows that the Veteran's service-connected PTSD does not result in total social impairment, an initial 70 percent rating, but not higher, is warranted. 2. Service Connection for migraine headaches In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) evidence that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service connected disability. The Veteran maintains that his migraine headaches are due to lack of sleep. With respect to evidence of a current disability, the Veteran underwent a VA examination in December 2017 and was diagnosed with migraine headaches, to include migraine variants. A current disability has therefore been demonstrated. With respect to an in-service injury, event or disease, the Veteran's service treatment records report a complaint of headache in January 1984. The headache was noted to be a symptom of an upper respiratory infection and a follow-up visit two days later did not report any complaints of headaches. Additionally, the Veteran specifically denied severe headaches on his self-reported April 1985, September 1987and June 1988 report of medical history forms associated with service examinations on those dates. With respect to evidence of a service-connected disability, the record reflects that the Veteran was granted service connection for PTSD, effective January 18, 2017, and obstructive sleep apnea, effective March 14, 2016. Therefore, a service-connected disability has been demonstrated. The Veteran underwent a VA examination in December 2017. The Veteran reported that his recurring headaches with occasional dizziness, nausea, light sensitivity and blurred vision began in 2016. The examiner opined that the Veteran's migraines were less likely than not related to or the result of his service-connected PTSD or sleep apnea. The examiner reasoned that PTSD and sleep apnea may worsen migraine symptoms, but there is no direct casual mechanism that is accepted by the general medical community that establishes that PTSD or sleep apnea may cause migraine headache episodes. In March 2019, a VA examiner provided an addendum opinion to clarify if the Veteran's headache disability was aggravated beyond its natural progression by his service-connected PTSD and sleep apnea. The examiner concluded that it was less likely than not that the Veteran's migraines were aggravated beyond their natural progression by his service-connected PTSD or sleep apnea. The examiner reasoned that the Veteran's treatment history did not mention any significant treatment interventions to mitigate symptoms and if aggravation was present, the records would mention such symptoms and treatment. Post-service treatment records do not demonstrate any ongoing treatment for headaches. In contrast, they demonstrate the Veteran denied headaches and dizziness on several occasions. See November 2016 and February 2018 CAPRI records. The Veteran is competent to describe his headache symptoms; however, he is not competent to independently opine as to the specific etiology of his headache disability as this is a medically complex issue with multiple potential etiologies. See Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). The Board finds the March 2019 medical opinion highly probative and affords it great weight. The examiner considered the Veteran's medical history and supported the opinion with an articulated rationale that is consistent with the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no medical opinion to the contrary. The preponderance of the evidence does not establish an in-service incurrence and the Veteran has not asserted that his migraines began in service. In fact, the Veteran has asserted that his migraines began in 2016, over 27 years after service. Thus, the nexus element cannot be met on a direct basis. As a result, service connection for migraines on a direct basis must be denied. The preponderance of the evidence is also against service connection on a secondary basis. The record does not demonstrate that the Veteran's migraines were caused or aggravated beyond their natural progression by his service-connected PTSD or sleep apnea. In sum, because the preponderance of the evidence fails to show that migraine headaches started in service or is due to, or aggravated by a service-connected disability, the claim must be denied. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for BPH The Veteran maintains that his BPH is related to his service-connected PTSD. See December 2017 VA 21-526EZ, claim form. The Veteran was provided with a VA examination in December 2017. The examiner found the Veteran's BPH was less likely than not related to service or caused by his service-connected PTSD. The examiner reasoned that the Veteran was diagnosed with BPH in 2015 and therefore it did not occur until after service. The examiner concluded that BPH is a condition caused by a growth of the prostate which occurs naturally in men, and age is the biggest contributor to BPH. The examiner further stated that the natural growth of the prostate is not affected by mental conditions such as PTSD. However, the December 2017 examination report did not address the Veteran's in-service treatment of urethral discharge and prostatitis. See May 1971 service treatment records. Once the VA undertakes providing a veteran with an examination, it has a duty to ensure it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, an addendum opinion is necessary to address the in-service prostatitis. Additionally, the examiner did not provide an opinion as to whether the Veteran's service-connected PTSD aggravated his BPH. A medical opinion addressing secondary service connection must address causation and aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, a remand for an addendum opinion to address aggravation is necessary. 2. TDIU Consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of a TDIU is therefore inextricably intertwined with the claims on appeal and must be remanded as well. Harris v. Derwinski, 1 Vet. App. 180(1991). The matters are REMANDED for the following action: Arrange for an appropriate examiner to review the Veteran's claims file. If the examiner feels an in-person or video telehealth examination is necessary, another examination should be scheduled. The examiner should provide an opinion addressing the following: (a.) Is the Veteran's BPH at least as likely as not (50 percent probability or greater) related to any in-service disease, injury, or event? The examiner should address the Veteran's May 1971 service treatment records related to treatment for a prostatitis. (Continued on the next page) (b.) b) Is the Veteran's BPH at least as likely as not (50 percent probability or greater) (A) caused or (B) aggravated beyond its natural progression by his service-connected PTSD? Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, Associate 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.