Citation Nr: 22018201 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-55 392 DATE: March 28, 2022 ORDER An initial rating of 70 percent for posttraumatic stress disorder (PTSD) with anxiety is granted. An initial 50 percent rating for migraines is granted. FINDINGS OF FACT 1. The Board resolves all reasonable doubt in the Veteran's favor by finding that throughout the period on appeal, the symptoms associated with his PTSD with anxiety have more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Board resolves all reasonable doubt in the Veteran's favor by finding that throughout the period on appeal, his migraines have more nearly approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for PTSD with anxiety have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an initial rating of 50 percent for migraines have been more nearly approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 2005 to July 2012, with service in Iraq from December 2005 to November 2006. These matters come before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in March 2019. The Board also remanded a claim for service connection for a lumbar spine disability in March 2019. Since service connection was subsequently granted in an October 2021 rating decision, that issue is no longer before the Board on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The April 2013 rating decision that is the subject of this appeal granted service connection for PTSD with anxiety and migraines effective July 19, 2012. The RO assigned an initial 30 percent rating for PTSD under 38 C.F.R. § 4.130, Diagnostic Code 9411 and a noncompensable (zero percent) rating for migraines under 38 C.F.R. § 4.124a, Diagnostic Code 8100. An October 2013 rating decision increased the rating for PTSD with anxiety to 50 percent effective April 30, 2013; the 50 percent rating was later made effective July 19, 2012, in a May 2017 rating decision. The rating for migraines was increased to 30 percent effective June 14, 2017, in a July 2017 rating decision. Given the procedural history as outlined, the Board must determine whether an initial rating higher than 50 percent is warranted for PTSD with anxiety, whether an initial compensable rating is warranted for migraines prior to June 14, 2017, and whether a rating higher than 30 percent is warranted for migraines as of June 14, 2017. 1. An initial rating higher than 50 percent for PTSD with anxiety Pursuant to the General Rating Formula for Mental Disorders, a 70 percent evaluation contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Formula for Mental Disorders, 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). The Veteran seeks a 70 percent rating for PTSD with anxiety. In his December 2013 notice of disagreement, he reported that six of the nine symptoms listed for a 70 percent rating apply to him, but he did not specify what those symptoms were. In his October 2017 VA Form 9, the Veteran reported that he is forgetful and that he tried going to school on campus, but it did not work and he failed tremendously. He decided to try it online and he started passing for the first time. Upon consideration of the evidence and resolving all doubt in favor of the Veteran, the Board finds an initial 70 percent rating is warranted for PTSD with anxiety throughout the appeal period. This determination is based on a holistic review of the symptomatology reported by the Veteran since initiating his claim, to include reports of nightmares, flashbacks, outbursts of anger, impaired sleep, hypervigilance, impaired impulse control, depressed mood, decreased interest in pleasurable activities, excessive guilt, fatigue/low energy, impaired concentration, passive suicidal ideations, irritability, hopelessness, helplessness, isolation/social withdrawal, panic attacks, nervousness, chronic worries, obsessive thoughts, compulsive rituals, intrusive thoughts, feelings of detachment, and lack of trust. The Board has also considered the evidence that in 2013, the Veteran reported that he was on probation for "putting my girlfriend in a rear naked choke" and that he had been court-mandated to take a life skills and anger management courses. In addition, the examiner who conducted the August 2013 VA examination reported symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work like setting; and the examiner who conducted the January 2020 VA examination reported symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships. The Board finds the evidence in total more nearly approximates PTSD with anxiety manifested by occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood. This represents a full grant of the benefit sought on appeal as this is the initial rating requested by the Veteran. 2. An initial compensable rating for migraines prior to June 14, 2017 3. A rating higher than 30 percent for migraines as of June 14, 2017 Diagnostic Code 8100 provides the rating criteria for migraine headaches. Compensable ratings are provided for characteristic prostrating attacks averaging one in 2 months over last several months (10 percent); characteristic prostrating attacks occurring on an average once a month over last several months (30 percent); and for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability (50 percent). The rating criteria do not define "prostrating," and neither has the Court of Appeals for Veterans' Claims. By way of reference, the Board notes that "prostration" is defined as "utter physical exhaustion or helplessness" in WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, Third College Edition (1986), see page 1080, and as "extreme exhaustion or powerlessness" in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY. See 1367 (28th Ed. 1994). Holmes v. Wilkie, 33 Vet. App. 67 (2020), held that the criteria for migraine headaches under Diagnostic Code 8100 contemplate all manifestations of that condition, including non-headache symptoms such as dizziness, mood swings, sleep impairment, and nausea, and that all symptoms experienced as a result of migraine attacks should be considered and rated based on the frequency, severity, and economic impact of the attacks. To warrant a 50 percent rating under Diagnostic Code 8100, migraine attacks "must render the veteran entirely powerless." Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). Additionally, any ameliorative effects of medication may not be considered since Diagnostic Code 8100 does not explicitly contemplate those effects. See Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). In his December 2013 notice of disagreement, the Veteran reported that he suffers from prostrating attacks once or twice a week; and that if four to eight attacks a month constitute severe economic inadaptability, then he warrants a 50 percent rating. In his October 2017 VA Form 9, the Veteran reported that he gets migraines from the screen while in school online. After resolving all doubt in the Veteran's favor, the Board finds that symptoms associated with his migraines more nearly approximate the criteria for an initial 50 percent rating. This determination is based on the fact that the Veteran has consistently reported that his migraine condition was the same since onset during VA examination; an April 2013 VA record that indicates he reported his migraines were more frequent and were manifested by pain in the temples that felt like someone had kicked him, that light bothered him, and that he saw flashing lights and had ringing ears; an August 2013 VA mental disorders examination report that documents the Veteran's report of migraines interfering with his ability to work, especially driving; his December 2013 report that he had prostrating migraine attacks once or twice a week; a June 2017 VA examination that documented pulsating or throbbing headache pain located on both sides of his head in the occipital and frontal regions, non-headache symptoms of nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, and ringing in his ears, the examiner's determination that headaches impacted the Veteran's ability to work, and the Veteran' report that he was a student and had trouble viewing a computer screen for long periods of time; VA treatment records dated in July 2017 and August 2017 documenting a headache that had lasted four days and that his headaches had been better for a while before his medication scripts lapsed; and his October 2017 report that he had four to eight prostrating attacks a month. The Board has also considered records obtained from the Social Security Administration that contain the Veteran's grandmother's November 2017 report that when he had a migraine, he could not drive and could barely get out of bed and that she had seen him go at least two days without sleep and in constant pain, and a January 2018 psychological evaluation during which the Veteran reported two to four migraines per week and that headaches began after he helped his children with their homework. Finally, the Board has considered VA records from April 2019 that show the Veteran's wife called about the Veteran's very bad migraines, that his headaches were not controlled, and that he was resting in a dark, cool area without noise or light; and the Veteran's report during the September 2021 VA examination that he had five headache episodes per week located on his right orbital and bilateral occipital head region with pulsating or throbbing head pain and non-headache symptoms of sensitivity to light and sound. The September 2021 VA examiner also reported that the Veteran had characteristic prostrating attacks of migraine and non-migraine headache pain more frequently than once per month and that his migraines impacted his ability to work resulting in difficulty concentrating. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.