Citation Nr: 21040696 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-63 821 DATE: July 6, 2021 ORDER An increased initial rating of 70 percent for an acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, is granted effective April 1, 2015. Effective March 13, 2016, an increased initial rating of 100 percent for an acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, is granted. An increased initial rating of 50 percent for migraine headaches is granted effective April 1, 2015. A rating in excess of 10 percent for tinnitus is denied. An initial rating in excess of 10 percent for a right knee disability is denied. A separate initial rating of 10 percent for painful left knee limitation of motion is granted effective April 1, 2015. A total disability rating based on individual unemployability (TDIU) is granted effective October 1, 2015. FINDINGS OF FACT 1. For the period prior to March 13, 2016, the Veteran's acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, was productive of social and occupational impairment with deficiencies in most areas, including mood, work, family relations, judgment, and thinking. There is no evidence of total social and occupational impairment before March 13, 2016. See June 2015 VA Examination; July 2019 VA Examination. 2. Since March 13, 2016, the Veteran's acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, has been productive of total social and occupational impairment from. See VA Treatment Records (VATRs) dated March 2016, August 2016 (noting manic or psychotic episodes); VA Examinations dated July 2019, November 2019, February 2020. 3. The Veteran's migraine headaches have been productive of very frequent completely prostrating and prolonged attacks leading to severe economic inadaptability throughout the claim period. See VA Examinations dated August 2016, January 2020. 4. The Veteran has been in receipt of the maximum schedular rating for tinnitus throughout the claim period. See April 2020 Rating Decision Codesheet. 5. The Veteran's right knee disability has been manifested by no more than limitation of motion with painful motion throughout the claim period. See June 2015 VA Examination. There are no other manifestations of the right knee disability. 6. The Veteran's left knee disability has been manifested by limitation of motion with painful motion throughout the claim period. See June 2015 VA Examination. There are no other manifestations of the left knee disability. 7. The Veteran's service-connected disabilities have prevented him from securing or maintaining a substantially gainful occupation since October 1, 2015. See VA Examinations dated June 2015, August 2016, July 2019, November 2019, January 2020, February 2020; January 2020 TDIU Application. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 70 percent for an acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, are met from April 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for an increased rating of 100 percent for an acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, are met from March 13, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. There is no legal basis for a schedular rating in excess of 10 percent for tinnitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 4. The criteria for a rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 5. The criteria for an increased rating of 10 percent for a left knee disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 6. The criteria for a TDIU are met from October 1, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from July 2013 to March 2015. This case is before the Board of Veterans' Appeals (Board) on appeal from July 2015 and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating 1. An Acquired Psychiatric Disability The Veteran's acquired psychiatric disorder, to include schizoaffective disorder and adjustment disorder, is currently rated as 10 percent disabling from April 1, 2015, 70 percent disabling from October 16, 2019, and 100 percent disabling from January 14, 2020, under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a rating of 70 percent requires 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 adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A rating of 100 percent requires 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, one's own occupation, or one's own name. As noted in the Findings of Fact above, the Board finds that an increased rating of 70 percent is warranted before March 13, 2016, and an increased rating of 100 percent is warranted from that date on. Beginning with the latter period, the evidence reflects that the Veteran has suffered from intermittent manic or psychotic episodes throughout this period. VA examinations in July 2019 and February 2020 noted manic or psychotic episodes beginning around 2016, as well as symptoms of suicidal ideation, hallucinations, memory impairment, inability to establish or maintain effective relationships, inability to function in a worklike setting, and inability to perform activities of daily living, including minimal personal hygiene. The earliest record evidence of such episodes is reflected in VATRs in March and August 2016, which note a manic or psychotic episode with symptoms of delusions, possible suicidal ideation, and impaired insight. Therefore, the Board finds that a rating of 100 percent is warranted from March 13, 2016. The evidence also reflects that the Veteran had impairment in most areas even before this date, including work, family relations, and mood. For example, the record indicates that the Veteran has not held a job for longer than a month since separating from service in March 2015; that he experienced persistent problems with his marriage, ending in a divorce in 2016; and that he has experienced symptoms of depressed mood and anxiety throughout the claim period. See VA Examinations dated June 2015,July 2019; January 2020 TDIU Application; February 2020 Employment Information Form. Therefore, the Board finds that a rating of 70 percent is warranted from April 1, 2015. However, as noted above, there is no evidence during this earlier period of total occupational and social impairment. In particular, there is no evidence of delusions or hallucinations before March 2016. The Veteran did in one instance report manic or psychotic episodes dating back to 2014, but this report was taken after March 2016 during one of his episodes, and his own later reports not taken during a manic or psychotic episode indicate that these episodes had their onset in 2016 at the earliest. See March 2016 VATR; July 2019 VA Examination. Nor is there evidence during this period of grossly inappropriate behavior or intermittent inability to perform activities of daily living, including minimal personal hygiene, or other symptoms of similar frequency, duration, and severity. Rather, a June 2015 VA examination noted the Veteran appeared well-groomed with good hygiene, rested, and alert. The examination also noted that the Veteran had good relations with his family members other than his wife, in particular his parents, and that he had a few friends with whom he socialized occasionally. Moreover, the examiner noted the Veteran was oriented to person, time, and place, with normal though processes, insight, and judgment, and reported no hallucinations or delusions. Therefore, because the evidence does not reflect that the Veteran's acquired psychiatric condition produced total occupational and social impairment before March 13, 2016, a rating in excess of 70 percent before that date is not warranted. 2. Migraine Headaches The Veteran's migraine headaches are currently rated as 30 percent disabling before January 14, 2020 and 50 percent disabling from that date on, under DC 8100. Under that code, a rating of 50 percent requires migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 50 percent is the highest rating provided by the rating schedule, and the Veteran has not reported any symptoms not contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board considers only entitlement to an increased rating for the period before January 14, 2020. The Veteran was afforded one VA examination to evaluate his migraine headaches during this period, in August 2016. The examiner noted migraine headaches with prostrating attacks occurring two to three times per month, but not productive of severe economic inadaptability. The examiner noted that there was "no concrete evidence" that the Veteran's headaches had impaired his performance in the military, and that it was difficult to assess the current impact of his headaches on functional ability because he was not currently working. The examiner checked a box indicating that the Veteran's headache treatment plan did not include taking medication. However, under the medical history, the examiner noted various medications taken or prescribed, including "2 different tricyclic antidepressants and Midrin" as well as Botox injections. Moreover, the record contains evidence of treatment with medication as well. See, e.g., April 2020 VATR (noting various past and present medications to treat headaches). As the rating criteria for migraines do not explicitly contemplate the ameliorative effects of medication, the assigned rating should contemplate the nature and frequency of characteristic prostrating attacks that would occur without medication. 38 C.F.R. § 4.124a, Diagnostic Code 8100; Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, there is no clear evidence of the severity of the Veteran's headaches with as opposed to without treatment by medication. However, the Veteran's symptoms as reflected in the August 2016 VA examination are situated more or less between the criteria for a 30 percent ratingwhich contemplate prostrating attacks occurring on average once a monthand those for a 50 percent ratingwhich contemplate "very frequent" attacks productive of severe economic inadaptability. Presumably, if the Veteran had not been treating his migraine headaches with medication, his symptoms would have been worse. In the absence of any clear evidence as to how much more severe they would have been, and resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that they would have comprised very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Therefore, an increased rating of 50 percent is warranted from the beginning of the claim period, April 1, 2015. 3. Tinnitus The Veteran's tinnitus is rated under Diagnostic Code 6260, which permits the assignment of a single rating with a maximum of 10 percent, regardless of whether tinnitus is heard in one ear, both ears, or in the head. 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006) (affirming VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus). The Veteran's tinnitus has been assigned the maximum schedular rating throughout the claim period, and he has not alleged any symptoms not contemplated by the schedular criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, since there is no legal basis for a rating in excess of 10 percent, the Veteran's claim for an increased rating must be denied. 4. Right Knee Disability The Veteran's right knee disability is currently rated as 10 percent disabling throughout most of the claim period, under DC 5260. (The Veteran also has a temporary total rating from December 2015 to March 2016 for a period of convalescence following surgery.) A rating in excess of 10 percent for a knee disability requires either ankylosis, recurrent subluxation or instability with particular signs and symptoms requiring the prescription of an assistive device, patellar instability with particular signs and symptoms requiring the prescription of an assistive device, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, flexion limited to no more than 30 degrees, extension limited to no less than 15 degrees, or impairment of the tibia and fibula with limitation of motion of the knee or ankle. The applicable criteria were slightly different before February 7, 2021. For the period before that date, a rating in excess of 10 percent for a knee disability requires either ankylosis, moderate or worse recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, flexion limited to no more than 30 degrees, extension limited to no less than 15 degrees, or impairment of the tibia and fibula with moderate or worse knee or ankle disability. The Veteran has been afforded one VA examination evaluating the severity of his right knee disability during the claim period, in June 2015. Other than the December 2015 surgery and subsequent convalescence, for which he is already compensated at 100 percent, he has not reported that his symptoms have worsened since that time. The June 2015 VA examination noted right knee flexion limited to 125 degrees with no limitation of extension. The Veteran reported pain limiting his ability to run, squat, stand, or walk. The examiner noted other symptoms. The findings of the June 2015 VA examination are competent, credible, and entitled to significant weight. Moreover, there is no evidence to the contrary. Therefore, the Board finds that the Veteran's right knee disability has not manifested in more severe symptoms of any kind throughout the claim period. Accordingly, a rating in excess of 10 percent for a right knee disability is not warranted. 5. Left Knee Disability The Veteran's left knee disability is currently rated as noncompensably disabling throughout the claim period, under DC 5257. Where an otherwise noncompensable joint disability manifests in painful motion, the Veteran is entitled to the minimum compensable rating for that joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5-6 (2011). The Veteran has been afforded one VA examination evaluating the severity of his left knee disability during the claim period, the June 2015 VA examination noted above. This examination noted left knee flexion limited to 125 degrees with no limitation of extension. The Veteran reported pain limiting his ability to run, squat, stand, or walk. The examiner noted other symptoms. Therefore, because the June 2015 VA examination evinces painful motion of the left knee, an increased rating of 10 percent is warranted throughout the claim period. However, neither the June 2015 VA examination nor the remainder of the record contains any evidence of more severe symptoms of any kind. Therefore, a rating in excess of 10 percent for a left knee disability is not warranted. 6. TDIU The Court of Appeals for Veterans' Claims (CAVC) has held that a total disability rating based on individual unemployability (TDIU) is part of a claim for an increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran submitted a claim for a TDIU based on all his service-connected disabilities in January 2020. Therefore, the Board infers that the issue of entitlement to a TDIU is a part of the Veteran's increased ratings claims on appeal. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, after accounting for increased ratings granted in this decision, the Veteran has two or more disabilities amounting to a combined disability rating of at least 70 percent, one of which is rated at least 40 percent, throughout the claim periodthat is, from April 1, 2015. The remaining issue is whether the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central question is whether the Veteran's service-connected disabilities alone were of sufficient severity to produce unemployability, taking into consideration the Veteran's education, training, and special work experience, but not his age or impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In the first place, the answer to this question appears to be "no" for the period before October 1, 2015, as by the Veteran's own report he was not too disabled to work before that date, and his self-reported employment history reflects intermittent full time employment from June to November 2015. See January 2020 TDIU Application. However, the evidence does support the Veteran's contention that his service-connected disabilities prevented him from working from October 2015 on. The Veteran left his job in October or November 2015 to have a left knee surgery, after which VA has found he was unable to work during a three-month period of convalescence, as reflected by his temporary 100 percent rating from December 2015 to March 2016. However, as noted above, the evidence shows that it was around the end of this period of convalescence that the Veteran began experiencing manic or psychotic episodes, which the Board finds (above) contributed to total occupational and social impairment. In short, due to a combination of the Veteran's knee disability, by reason of which he left his job around October 2015, and his acquired psychiatric disability, the Veteran has been unable to secure or maintain a substantially gainful occupation since he left his position to have knee surgery. Therefore, the Board finds that a TDIU is warranted from October 1, 2015, the date the Veteran reported he became too disabled to work. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Timmerman, 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.