Citation Nr: 21031650 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-66 846 DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 40 percent for an upper back injury with scoliosis and degenerative arthritis is dismissed. Service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. A rating in excess of 30 percent for recurrent migraine headaches is granted. FINDINGS OF FACT 1. On March 18, 2021, the Veteran withdrew her appeal as to the claim for an increased rating for her upper back disability, to include scoliosis and degenerative arthritis. 2. An acquired psychiatric disorder is the result of military sexual assault during active duty military service. 3. Throughout the appeal period, the Veteran's migraine headaches have manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a rating in excess of 40 percent for an upper back injury with scoliosis and degenerative arthritis by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD as the result of military sexual trauma (MST) have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for an initial 50 percent rating for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from February 1983 to August 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2016 and December 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in March 2021; a transcript of the hearing has been associated with the file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and she has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased rating. Withdrawal of Claim Increased Rating for Upper Back Disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the veteran or by his authorized representative. Id. In the present case, the Veteran has withdrawn her claim for increased rating of her upper back disability; hence, there remain no allegations of errors of fact or law for appellate consideration regarding the appropriate rating of her upper back disability. At the March 2021 hearing, the Veteran stated that she wished to withdraw her increased rating claim for her back disability. She confirmed this withdrawal on the record at the hearing. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). The Veteran's statement at the hearing was explicit and unequivocal. The undersigned Veterans Law Judge inquired further about her understanding of the effect of the withdrawal, noting that there was a proposed reduction in her back rating that was pending final action and not currently on appeal. The Veteran and her representative agreed that her plan was to pursue any reduction in her upper back disability rating in a separate claim. Accordingly, the Board does not have jurisdiction to review the claim for an increased rating of the Veteran's upper back disability and it is dismissed. Service connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection for PTSD, specifically, requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A Veteran's lay testimony alone may establish the occurrence of a claimed in-service stressor if: (1) the claimed stressor is related to the Veteran's fear of hostile military or terrorist activity; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor, and (3) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. See 38 C.F.R. § 3.304(f)(3). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In this case, the Veteran was diagnosed with PTSD by the June 2019 VA examiner, satisfying the requirement of a current disability and medical evidence diagnosing PTSD. Service department records do not document that the Veteran reported or sought treatment for a sexual assault while on active duty. Her personnel file shows that she received a Meritorious Mast commendation for outstanding service between July and October 1987, a good conduct award for the period from February 1986 and January 1989, and performance evaluations from 1989 and 1990 described her as having tremendous growth potential and enthusiastically recommended her for promotion. At separation, no psychiatric abnormalities were noted. VA treatment records indicate that the Veteran first disclosed her MST to a behavioral health provider around January 2016 during a mental health outpatient consultation. At a February 2016 psychiatric assessment, the Veteran reported experiencing symptoms of depression and anxiety beginning after her MST. She described experiencing depressive episodes, sleep difficulties, decreased energy and motivation, social isolation, occasional nightmares, and an increased startle response. The Veteran was given a diagnosis of persistent depressive disorder, mild alcohol use disorder and rule out diagnoses for specified trauma and stressor related disorders. The Veteran participated in individual therapy that was focused on her alcohol use for approximately two months in 2016, and was then referred to an outpatient substance abuse program. The Veteran asserted in multiple statements and Board testimony that she was raped while walking home from work while on active duty service while stationed in Japan. The Veteran's friend PR, who was stationed with her in Japan, described a sudden change in the Veteran's behavior and personality that occurred while they were stationed in Japan. PR also recounted that the Veteran disclosed the assault to her while they were both still on active duty service. The Board finds the Veteran's report of MST competent and credible. The Veteran's consistent accounts of MST are corroborated by a detailed lay statement describing a report of the incident made close in time to the incident. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Additionally, in June 2019, a VA examiner noted that the Veteran's particular combination of low back pain and migraines is a physical marker associated with sexual trauma. These satisfy the requirement of corroboration. In the June 2019 Disability Benefits Questionnaire, the VA examiner (a PhD level psychologist) indicated that the Japan incident was adequate to support the diagnosis of PTSD. The VA examiner concluded that the Veteran's current symptoms and diagnosis were related to the personal assault that occurred during military service. He also noted that the Veteran's 2016 diagnosis of Persistent Depressive Disorder was erroneous, given the Veteran's trauma history. The Board notes that the Veteran's VA treatment records indicate that treating clinicians gave rule out diagnoses of trauma and stressor related disorders, but these same treatment records do not show that these diagnoses were ruled out. This conclusion accounts for the reports of the Veteran and PR regarding the onset of her symptoms in service. Consequently, the Board finds this opinion persuasive and gives it significant probative weight. The Board notes that a September 2016 VA examiner diagnosed the Veteran with Persistent Depressive Disorder, opined that the Veteran's MST was at least as likely as not contributing to her depressive condition, but that the Veteran's persistent depressive disorder was less likely than not incurred in service. She based this conclusion on the lack of service records showing mental health concerns or a decline in work performance, and a lack of mental health treatment until 2016. The conclusion that the Veteran's psychiatric disorder was not incurred in service is both internally inconsistent with the examiner's other conclusions and does not account for PR's statement regarding the behavior changes that she observed while the Veteran was on active duty. The Board gives her opinion little weight. As the Board has found the Veteran's assertions to be credible and corroborated by other evidence of record and the 2019 VA examiner's opinion linking her currently diagnosed psychiatric disorder to her period of active service, service connection for an acquired psychiatric disorder, including PTSD, is warranted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran seeks a rating in excess of 30 percent for her service-connected migraine headaches. Migraine headaches are rated under Diagnostic Code 8100 in the Schedule of Ratings for Neurological Conditions and Convulsive Disorders found in 38 C.F.R. § 4.124a. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under Diagnostic Code 8100, a noncompensable rating is warranted for migraines with characteristic prostrating attacks occurring less frequently than one in two months over the last several months. A 10 percent rating is warranted for migraines with characteristic prostrating attacks occurring averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. The highest 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not provide clarification as to the meaning of the phrase "productive of severe economic inadaptability." In Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004), the Court interpreted the phrase as follows: "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating" because "[i]f 'economic inadaptability' were read to import unemployability, "a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)]... rather than just a 50% rating." Id. at 446. The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU. Id. (citing 38 C.F.R. § 4.16 (a). In addition, the Court in Pierce acknowledged the Secretary's concession 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. Id. at 445. VA treatment records show that on at least three occasions between March 2015 and August 2015, the Veteran denied having migraine headaches at optometry clinic appointments. In August 2016, the Veteran reported having daily headaches that were mostly in the frontal region of her forehead. At an October 2016 VA optometry clinic appointment, the Veteran endorsed migraines. The VA treatment records showed that since March 2015, the Veteran rarely, if ever, sought treatment from the VA for her migraine headaches. She did request the VA refill the acetaminophen that she used to treat her migraine headaches on at least two occasions, in March 2018 and May 2019. These same records show that the Veteran denied having headaches in January 2020, but in March 2020, an alert response indicated that she was having headaches. Both of these reports were made in the context of cardiovascular symptoms. In January 2021, medical records show that the Veteran was still taking Tylenol, although it did not indicate why. In December 2017, the Veteran stated that she had been experiencing headaches three to five times a week, which caused her to lay down and take Tylenol. She reported that sunlight causes her to experience headaches, and that her headaches caused her to take days off each week. The Veteran testified at the March 2021 hearing that she suffers migraine headaches that require her to lie down approximately four to five times a week. These headaches generally require her to take a full day off work, although at times, the headaches will last for multiple days. These headaches are severe enough that she loses approximately twelve to fourteen days of work per month. She treats these headaches with medications like Tylenol and Excedrin, but the most effective treatment is laying down in a dark room. She described having other, less severe headaches that she tries to deal with by taking medication, but that when her headaches are severe, she cannot function or do her job. The Veteran testified that her headaches had worsened since 2016, and reached their current level of severity approximately two and a half to three years prior to the March 2021 hearing. Although a March 2016 VA examiner concluded that the Veteran's migraines did not impact her ability to work or cause prostrating attacks of pain, this examination is significantly deficient. The examiner failed to ascertain the frequency of the Veteran's migraine headaches, and aside from her conclusion that the Veteran's headache pain did not cause characteristic prostrating attacks, did not elicit information regarding the severity of her migraine headaches. Likewise, the examiner failed to document the onset and course of the Veteran's headache symptoms. Although the Veteran reported that her headaches had caused her to miss approximately nine days of work in the last year due to her headaches, the examiner concluded that the Veteran's headache condition did not impact her ability to work. Given the significant omissions in the examination, the Board gives little weight to these conclusions. The Board finds that the Veteran is competent to report the frequency and severity of her migraine headaches, as well as the effect of these headaches on her ability to function. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The Board finds the Veteran's testimony at the March 2021 hearing the most probative evidence concerning the frequency and severity of her migraine headaches. The Veteran testified that her headaches have worsened since 2016, although they did not reach their current level of severity (causing her to miss 12-14 days of work per month) around 2018. Although the VA treatment records do not document significant migraine treatment since March 2015, this observation is equally true for the period prior to 2015. Affording the Veteran the benefit of the doubt, based on the Veteran's testimony regarding her overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the Veteran has had very frequent completely prostrating and prolonged attacks of migraine headache pain throughout the appeal period since March 2016. While the March 2016 VA examination characterized her migraine symptoms as non-severe, this examination was inadequate, more probative evidence tends to show that the Veteran's disability picture more nearly approximates the frequency and severity contemplated by a 50 percent rating for migraines. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Specifically, the Board finds that Veteran's August 2016 statement to her treating physician that she has daily headaches the most probative evidence of the frequency of her headaches prior to 2018. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). As for the economic inadaptability prong of the 50 percent rating, the Board finds that the Veteran's migraine attacks are productive of severe economic inadaptability. Here, the Veteran testified that she misses twelve to fourteen days of work per month as a result of her migraine headaches. Though the Board acknowledges that the Veteran has remained employed despite her continued absences, the Board concludes that her migraine headaches are productive of severe economic inadaptability. See Pierce, 18 Vet. App. at 445-46. The Board, in consideration of 38 C.F.R. § 3.400(o)(2) and Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), has considered the evidence in the one year prior to the date of receipt of the increased rating claim, but finds that it does not support a finding that the Veteran's disability increased in severity, such as to warrant a higher rating, during that one year period. Entitlement to an increased 50 percent rating for migraine headaches is granted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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