Citation Nr: 23017635
Decision Date: 03/21/23	Archive Date: 03/21/23

DOCKET NO. 19-00 914
DATE: March 21, 2023

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement a total disability rating based on individual unemployability (TDIU) is granted.

Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder is denied.

Entitlement to a rating in excess of 50 percent for migraine headaches is denied.

Entitlement to an earlier effective date, prior to November 21, 2016, for unspecified depressive disorder is denied.

FINDINGS OF FACT

1. Affording the Veteran the benefit of doubt, the evidence is approximately balanced in favor of finding the Veteran's currently diagnosed tinnitus, began in service and continued since service, thereby establishing a causal link between her military service and her currently diagnosed tinnitus.

2. The Veteran's combined rating for all disabilities is 80 percent since November 21, 2016; therefore, she meets the schedular requirement for TDIU; and the weight of the evidence is in favor of finding her service-connected disabilities have rendered her unable to secure and maintain substantially gainful employment. 

3. Throughout the entire period on appeal, the Veteran's service-connected unspecified depressive disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

4. Throughout the entire period on appeal, the Veteran's service-connected migraine headaches have been manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; this is the maximum schedular rating permitted by VA regulations.

5. VA received the Veteran's initial claim for unspecified depressive disorder on November 21, 2016.

CONCLUSIONS OF LAW

1. The criteria have been met for service connection for tinnitus. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385.

2. The criteria have been met for TDIU. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.400.

3. The criteria have not been met for an initial rating in excess of 50 percent for unspecified depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (Code) 9435.

4. The criteria have not been met for a rating in excess of 50 percent for migraine headaches. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.400, 4.124a, Code 8100.

5. The criteria have not been met for an effective date earlier than November 21, 2016, for unspecified depressive disorder. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.106, 3.155, 3.158, 3.400, 3.655.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2017 and July 2017 rating decisions by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

The Board notes that in the Veteran's original December 2018 VA Form 9, there was a request for a Board hearing.  In October 2021, however, the Board received correspondence from the Veteran and her representative that she wished to withdraw her hearing request. Accordingly, the Board finds the hearing request is withdrawn and adjudication of the appeal is proper. 

In May 2022, the Board received correspondence from the Veteran's representative to have the appeal expedited due to financial hardship. The Board construed this correspondence as a motion for advance on docket. However, no probative evidence of the financial hardship was found, accordingly, that motion is herein denied. 

1. Entitlement to service connection for tinnitus is granted.

Legal Criteria

Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. 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 disability was incurred in service. 38 C.F.R. § 3.303(d).

Certain chronic diseases (including hypertension) will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease enumerated in 38 U.S.C. § 1101(a) or 38 C.F.R. § 3.309 is diagnosed after separation from service, the nexus requirement of a claim for service connection can be proven by evidence of a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

As an organic disease of the nervous system, tinnitus is considered a chronic disease for VA compensation purposes. See Fountain v. McDonald, 27 Vet. App. 25 (2015). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

Factual Background and Analysis

The Veteran has asserted that her tinnitus is related to acoustic trauma she experienced during active-duty service.

The Veteran attended a May 2017 VA examination for her tinnitus condition. The examiner confirmed a diagnosis of tinnitus. The Veteran reported constant ringing in both ears with an onset in 1990 or 1991 when her sinus issues began and she was taking BC powder regularly. Further, the Veteran reported she noticed the ringing in her ears when they would conduct field exercises with Vulcan tanks and that she did not have ear protection. The ringing has persisted since service. The examiner opined that it is less likely than not that the Veteran's tinnitus is related to service. The examiner reasoned that there was no significant, permanent shift in hearing from entrance to separation, no permanent auditory damage from conceded noise exposure during active duty, no report of symptoms until 2016 recorded in medical records, and no chronicity until 2016 with report of ear pain, pressure and excessive amounts of ototoxic medication.

The Board finds the evidence of record is approximately balanced in favor of finding the Veteran's currently diagnosed tinnitus began in service and continued since that time, thereby establishing a causal link. 

The Board finds the Veteran's statements about the onset and continuance of her tinnitus is competent and credible evidence and gives it significant probative weight. See Charles v. Principi, 16 Vet. App. 370 (2002). (Holding that for VA purposes, tinnitus is a disability that is capable of observation and diagnosis by a lay person.) 

Further, the Board finds that working in around tanks on drill without ear protection is a sufficient in-service injury or event.

It is well-established that service connection for a hearing loss disability can still be warranted even when the Veteran had normal audiometric tests upon discharge from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). 

The Board finds the May 2017 VA examination and medical opinion is adequate but affords it the same probative weight as the Veteran's statements about onset of tinnitus. The Board notes the medical opinion did not address the Veteran's statements about the noise she was exposed to during his military service.

Given the noise exposure in service and the Veteran's competent reports of onset in service, service connection for tinnitus is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

2. Entitlement to TDIU is granted.

The Veteran asserts that she is entitled to TDIU; the Board agrees.

TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a). 

Effective November 21, 2016, the Veteran is 50 percent for unspecified depressive disorder and 50 percent for migraine headaches, for a combined total of 80 percent; thus, the Veteran meets the schedular requirement from that date.

In the Veteran's November 2016 VA 21-8940, she reported that she stopped working due to her disabilities November 6, 2016.

In a February 2017 VA examination, the examiner checked the box indicating that the Veteran's migraine headache condition does not impact her ability to work. The examiner further stated that the Veteran lost her job due to neck pain and not headaches.

he March 2017 VA examiner noted that the Veteran resigned her job as a social worker due to "clerical DDD," and most recently lost her job as a cashier because she missed too much work.

In a September 2020 private vocational assessment, the clinician opined that the Veteran has been unable to secure and follow any substantially gainful occupations based on her service-connected condition since at least November 2016 when she was unable to work in any capacity within the general labor markets. The clinician's reasoning was based on her interviews with the Veteran, her claims file, and medical records (including VA examinations). Further, it was noted that the Veteran missed numerous days of work due to her depressive disorder and migraines. The examiner pointed to the severity of the Veteran's migraines cause prostrating headaches that last for three or more days would have a significant impact on her ability to function in a work environment. The clinician concluded that their opinion is expressed within a reasonable degree of professional certainty based on the record.

The Board affords more probative weight to the competent and credible statements of the Veteran and the September 2020 vocational assessment. 

The greater weight of the probative evidence of record demonstrates that the Veteran's service-connected disabilities preclude her from securing and maintaining substantially gainful employment given her work experience and educational background.   

Given the above, the Board finds the Veteran's service-connected disabilities prevents her from securing and maintaining substantially gainful employment. Based on his educational and occupational history, the Veteran would be unable to perform any work functions in a meaningful manner given his current medical condition.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.

When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to an initial rating in excess of 50 percent for unspecified depressive disorder is denied.

Legal Criteria

The Veteran's depressive disorder is currently rated at 50 percent under the General Rating Formula for Mental Disorders (General Formula). 

A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9435.

A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id.

A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id.

The list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, 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 solely on the basis of social impairment. 38 C.F.R. § 4.126.

As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court's holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value, and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018).

Factual Background and Analysis

The Veteran has requested the highest possible rating for her unspecified depressive disorder. 

The Veteran attended a March 2017 VA examination for her depressive disorder. The examiner confirmed a diagnosis of unspecified depressive disorder. The Veteran denied suicidal ideation, homicidal ideation, or suicide attempts. The examiner checked the box indicating that the Veteran's depressive disorder results in occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The March 2017 VA examiner noted that the Veteran resigned her job as a social worker due to "clerical DDD," and most recently lost her job as a cashier because she missed too much work. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.

A July 2017 VA treatment record noted moderately severe depression. The Veteran reported trouble concentrating on things such as reading, feeling tired every day, and that the problems make it somewhat difficult for the Veteran to work.

In an April 2018 VA treatment record psychiatric note, the Veteran reported chronic issues with depressed mood and anxiety symptoms, ongoing for the past year. She reported being very tired and related current issues with family and moving. The Veteran reported fears of living in her current apartment and caring for her parents due to the location. The Veteran expressed symptoms of anxiety, irritability, depressed mood, constant fatigue, poor appetite, poor sleep, poor concentration, but denied suicidal ideations.

Elsewhere in VA treatment records, it is noted that the Veteran cares for her parents, manages her own finances, and has at times, maintained employment. 

A review of VA treatment records reveals no report of suicidal ideation. 

Throughout the period on appeal, the Veteran's symptoms have been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

The Board affords the March 2017 VA examination significant probative weight. The examination provides a clear picture of the Veteran's disability picture and strong evidence that a higher rating is not warranted. 

Further, the VA treatment records reveal the Veteran has been able to maintain relationships with her family, cares for her parents, maintains her finances, and has never expressed suicidal ideation.

After considering the evidence of record, the Board finds that the Veteran's symptoms more closely approximate the criteria for a 50 percent disability evaluation for the entire appeal period. Overall, the Veteran has not demonstrated a level of impairment consistent with the 70 percent criteria, nor have the Veteran's symptoms caused occupational and social impairment with deficiencies in most of the areas or total occupational and social impairment referenced by the 70 and 100 percent evaluation criteria. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9435. Thus, the weight of the evidence is against a rating in excess of 50 percent for PTSD and as such, the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. at 53.

2. Entitlement to a rating in excess of 50 percent for migraine headaches is denied.

Legal Criteria

Migraine headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100.

Under this diagnostic code, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks 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. A 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic instability. See 38 C.F.R. § 4.124a, Diagnostic Code 8100.

The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38C.F.R. §§4.7 and 4.21 inapplicable. Id. 

The phrase "characteristic prostrating attacks" is used to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness.

The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." Productive can be read as having either the meaning of "producing" or "capable of producing," and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 44546 (2004).

Factual Background and Analysis

In a February 2017 VA examination, the examiner checked the box indicating that the Veteran's migraine headache condition does not impact her ability to work. The examiner further stated that the Veteran lost her job due to neck pain and not headaches. The examiner noted the Veteran's headache pain is constant, pulsating, on both sides of the head, and occur daily all the time, with prostrating attacks at least twice a month. The Veteran's headaches also cause nausea, vomiting, sensitivity to light and sound, and sensitivity to smell. 

Since the Veteran's service-connected migraine headaches has been assigned the maximum schedular rating available for migraines throughout the entire appeal period, the Board finds there is no legal basis upon which to award a higher schedular evaluation for migraine headaches during the appeal period. As such, entitlement to a rating in excess of 50 percent for migraine headaches is not warranted on a schedular basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994).

3. Entitlement to an earlier effective date, prior to November 21, 2016, for unspecified depressive disorder is denied

Legal Criteria

Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1).

For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686.

Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition. Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination).

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).

Factual Background

The Board received the Veteran's claim for service connection for unspecified depressive disorder on November 21, 2016.

Analysis

As noted above, the earliest effective date will be the date of receipt of the claim to open or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the award of service connection for unspecified depressive disorder on November 21, 2016, the date of receipt of the claim.

 

 

DUSTIN L. WARE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Williams, Michael E. (BVA)