Citation Nr: A25035202
Decision Date: 04/16/25	Archive Date: 04/16/25

DOCKET NO. 231129-397775
DATE: April 16, 2025

ORDER

Entitlement to an increased rating of 50 percent for chronic tension headache disability (headache disability) is granted for the entire period on appeal. 

From March 26, 2014, to October 27, 2021, entitlement to an initial disability rating in excess of 70 percent for depressive disorder due to another medical condition with depressive features (depression disability) is denied. 

From March 26, 2014, to October 27, 2021, entitlement to a total disability rating based on individual employability (TDIU) is granted. 

Entitlement to an earlier effective date for the award of Dependents' Educational Assistance (DEA) benefits of March 26, 2014, but no earlier, is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in favor of the Veteran, his headache disability most nearly approximates the criteria for a 50 percent rating for the entire period on appeal.

2. From March 24, 2016, to October 27, 2021, the Veteran's depression disability more closely approximates occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown at any point. 

3. Resolving reasonable doubt in favor of the Veteran, his service-connected depression, headache, hearing loss, and tinnitus disabilities prevented him from securing or following substantially gainful employment from March 24, 2016, to October 27, 2021.

4. The evidence persuasively weighs in favor of a finding that the Veteran became permanently and totally disabled for purposes of DEA benefits March 26, 2014, but no earlier.

CONCLUSIONS OF LAW

1. The criteria for an increased 50 percent rating for headache disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.14, 4.124a, Diagnostic Code (DC) 8100.

2. From March 26, 2014, to October 27, 2021, the criteria for an initial disability rating in excess of 70 percent for depression disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.130, DC 9434.

3. From March 26, 2014, to October 27, 2021, the criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

4. The criteria for an effective date of March 26, 2014, but no earlier for the award of DEA benefits, have been met. 38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran honorably served in the United States Army from July 1977 to June 1984.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2023 and September 2023 Appeals Modernization Act (AMA) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ).

Historically, the Veteran filed an October 2021 VA Form 20-0995, Supplemental Application for Compensation, seeking review of a July 2021 rating decision, which granted service connection and assigned a 70 percent evaluation. The AOJ denied a higher rating for the Veteran's depression disability in a September 2022 rating decision. In a November 2022 rating decision, the AOJ denied the Veteran's entitlement to a TDIU and proposed that his depression disability rating be decreased to 50 percent. In a March 2023 rating decision, the AOJ increased the Veteran's depression disability rating to 100 percent and granted DEA benefits both effective October 28, 2021. The Veteran filed a May 2023 VA Form 20-0996, Request for Higher Level Review (HLR), seeking an earlier effective date for his 100 percent rating, TDIU, and DEA benefits prior to October 28, 2021. In the August 2023 rating decision on appeal, the AOJ considered the evidence of record at the time of the November 2022 and March 2023 rating decisions and denied them on the merits. 

Turning to the Veteran's headache rating, the Veteran filed an April 2022 VA Form 20-0996, Request for HLR, seeking review of a December 2021 rating decision. In a May 2022 rating decision, the AOJ continued the Veteran's 30 percent rating and denied his claim for an earlier effective date. The Veteran filed a March 2023 VA Form 20-0995, Supplemental Application for Compensation, seeking review of the May 2022 rating decision. In the September 2023 rating decision on appeal, the AOJ continued the Veteran's 30 percent disability rating. 

In his November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. Therefore, when adjudicating the Veteran's claim for an increased rating for his headache disability, the Board may only consider the evidence of record at the time of the March 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. For the Veteran's entitlement to a TDIU, the Board may only consider the evidence of record at the time of the November 2022 AOJ decision, which was subsequently subject to HLR. Id. When adjudicating the Veteran's depression disability rating and effective date for DEA benefits, the Board may only consider the evidence of record at the time of the March 2023 AOJ decision, which was subsequently subject to HLR. Id. If evidence was submitted during the period after the AOJ issued the rating decisions on appeal, including those which were subsequently subject to HLR, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims decided herein, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. 38 U.S.C. § 1155. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 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).  Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id.; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions will be equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (the benefit-of-the-doubt rule applies if the competing evidence is in approximate balance). In applying the benefit of the doubt rule, the Board is required to assign probative weight to relevant evidence, make a specific finding as to which evidence the Board finds more persuasive, and provide the reasoning for such finding. Bufkin v. McDonough, 75 F.4th 1368 (Fed. Cir. 2023). All medical definitions utilized herein may be found at Dorland's Medical Dictionary Online.

Lastly, the Board has thoroughly reviewed the evidence of record in conjunction with this case. However, it has limited its discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Thus, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims on appeal.

1. Entitlement to an increased rating of 50 percent for headache disability is granted for the entire period on appeal. 

The Veteran contends that his headaches are more severe than initially rated and warrant a 50 percent rating for the entire period on appeal. See March 2023 VA Form 21-4138, Statement in Support of Claim; November 2023 Appellate Brief. As the Veteran has continuously pursued his claim for an initial disability rating, the Board will evaluate the evidence of record from March 26, 2014, forward, to determine when an increase in the Veteran's headache disability was factually ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date for an increased rating which is predicated on when the increase in the level of severity can be ascertained); 38 C.F.R. § 3.2500. 

As the Veteran's chronic tension headaches are not specifically listed in the ratings schedule, they are rated by analogy under DC 8100.  See 38 C.F.R. §§ 4.20, 4.124a, DC 8100; see Lendenmann v. Principi, 3 Vet. App. 345, 351 (1992). He is currently in receipt of a 30 percent rating. To warrant a 50 percent rating, the evidence must be in, the very least, approximate balance the Veteran's headaches were manifest by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Typically, the criteria under DC 8100 are successive, meaning each disability level builds on the one before in terms of duration and frequency, and thus requires that a Veteran rated at a higher level satisfy all of the requirements of the lower levels. Johnson v. Wilkie, 30 Vet. App. 245 (2018). However, since the Veteran's disability is analogously rated under DC 8100, it need not identically manifest all the criteria of listed therein to obtain a certain disability rating. See Webb v. McDonough, 71 F.4th 1377, 1381 (Fed. Cir. 2023) ("As a matter of plain language, it would be nonsensical to require a veteran's unlisted disability to precisely meet the criteria for a listed disease or injury's diagnostic code."); see also Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006).

In determining whether the Veteran experiences the type and frequency of prostrating attacks of headaches necessary for a higher rating under DC 8100, the Board observes that the rating criteria do not define "prostrating," nor has the United States Court of Appeals for Veterans Claims (Court). See, e.g., Fenderson v. West, 12 Vet. App. 119 (1999). According to Mirriam Webster's Dictionary Online, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in Dorland's Medical Dictionary Online, in which "prostration" is defined as "extreme exhaustion or powerlessness." However, the Court has recognized that under DC 8100 "'[c]haracteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Johnson, 30 Vet. App. at 251. In addition, "completely prostrating headaches must render the veteran entirely powerless" and must be long in duration to satisfy the 50 percent requirements. See id. at 253.

The phrase "productive of severe economic adaptability" has not been clearly defined by regulations or case law. The Court has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). DC 8100 also does not define "economic inadaptability." The Court held that under DC 8100, a headache disorder need only be "capable of producing" economic inadaptability, and that this standard is different from the "unemployability" standard applicable in the context of determining entitlement to a TDIU. Pierce, 18 Vet. App. at 445; see also 38 C.F.R. §§ 3.340, 4.16 (setting forth the requirements for establishing entitlement to TDIU). Thus, "productive of economic inadaptability" does not require that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce, 18 Vet. App. at 445-46. At a minimum, however, headaches must be capable of producing "severe" economic inadaptability.

Turning to the evidence of record, the Veteran provided a July 2017 Headaches (Including Migraines Headaches) Disability Benefits Questionnaire (DBQ) in support of his claim of entitlement to service connection. See July 2017 DBQ - Veteran Provided. Therein, the private physician diagnosed the Veteran with migraine headaches and noted the Veteran's reports that his headaches occurred two to three times per week and lasted one to six hours in duration. The Veteran detailed that his headaches were precipitated by his depression and tinnitus, that when he had a headache, he had to lay down in a dark quiet room for relief, and that he took medication including acetaminophen, Tramadol, and naproxen. The Veteran rated the pain of his headaches at a seven and a half on a scale of one to 10 in severity. The private physician found that the Veteran experienced constant headache pain, which was located on both sides of his head, was pulsating or throbbing in nature, and worsened with physical activity. The private physician indicated that the Veteran experienced non-headache symptoms associated with his disability, including nausea, vomiting, sensitivity to light and sound, changes in vision, sensory changes, dizziness, and difficulty concentrating. The private physician found that the Veteran's head pain typically lasted less than one day, but that his headaches were very frequent prostrating and prolonged attacks of migraine headache pain. In the remarks section of the DBQ, the private physician noted that the Veteran reported his headaches occurred several times per month. According to the Veteran's private physician, he would miss approximately 10 days and leave early about 10 days per month. Id. Nearly daily, the Veteran would not be able to stay focus for at least seven of eight hours of a workday.

In a March 2021 lay statement, the Veteran detailed the severity of his headache disability:

My headaches occur at least a couple of times per week where I have to go lie down in a dark and quiet room. Sometimes those headaches linger most of the day, and even when they long [sic] last a few hours, I'm so drained after I get rid of a headache that I don't have energy to do anything. I am very sensitive to light and sound with my headaches. Sometimes they make me nauseous. I get lightheaded when I stand up. Sometimes my vision gets blurry and I feel disoriented. I feel a lot of pressure in my head and sometimes sharp pains. I can't function or focus when my head hurts like that. Sometimes I have to cancel or change my plans because my headache gets so bad that I won't drive because I am dizzy and struggled with my vision. Physical activity makes my headache worse. Anytime I get a headache, my tinnitus sounds louder. The ringing in my ears makes my head hurt worse and feel more intense, which also causes me a lot of stress and irritability. I think my hearing loss impacts my headaches as well because I'm constantly straining so much to hear things around me.

See March 2021 Correspondence. 

The Veteran was afforded a VA examination in July 2021. See July 2021 Headaches (Including Migraines Headaches) DBQ. There in, the examiner noted the Veteran's previous diagnosis of migraine headaches in 1985, that his disability had worsened, and his use of naproxen to treat his headache disability. The examiner found that the Veteran experienced constant head pain which was pulsating or throbbing and located on both sides of his head. The examiner further found that the Veteran experienced non-headache symptoms including nausea, vomiting, sensitivity to light and sound, and changes in vision. The examiner indicated that the Veteran's head pain would typically last less than one day in duration and that he had characteristic prostrating attacks of migraine/non-migraine headache pain once a month, but the Veteran did not have very prostrating and prolonged attacks of migraines/non migraine pain productive of severe economic and adaptability. The examiner noted that the Veteran could not concentrate on occupational tasks during his headaches and during prostrating attacks, he found a dark and quiet room to lay down for relief.

The Veteran submitted a lay statement in March 2023 in support of his claim. Therein, he detailed:

My headaches are prostrating. When I get a headache, I have to lie down in a dark room for at least 5 hours to relieve the pain and other symptoms, including sensitivity to light, sound and smell. I get these headaches at least 6 times a month. I also take Gabapentin to help with the headaches. My headaches have been this severe and disabling since at least 2014.

See March 2023 VA Form 21-4138, Statement in Support of Claim. 

The Veteran underwent another VA examination for his headache disability in August 2023. See August 2023 Headaches (Including Migraines Headaches) DBQ. Therein, the examiner noted the Veteran's diagnosis of tension headaches in 1984 and his reports of a slow progression of symptoms which were now manifested by constant headaches that affected both sides of his head with associated light and sound sensitivity. The examiner noted that the Veteran took Tylenol as needed to treat his headache disability, and that his headache pain was constant, pulsating or throbbing, and located on both sides of his head. The examiner further found that the Veteran experienced non-headache symptoms including sensitivity to light and sound. The examiner indicated that the veterans head pain typically lasted less than one day and that he experienced characteristic prostrating attacks of migraines/non-migraine headache pain once every month, but that he did not experience completely prostrating and prolonged attacks of migraines/non migraine pain productive of severe economic and adaptability. The examiner noted that although the Veteran was currently not employed, his headache pain would cause occupational impairment in the form of decreased productivity and concentration. In the remarks section, the examiner noted that the Veteran's headaches were best diagnosed as chronic tension headaches based upon a review of his medical records, the history of his disability, and the examination.

A thorough analysis of the Veteran's VA medical treatment records throughout the period on appeal show his reports of headache pain and that he takes medication to ameliorate the effects of same. See September 2022 CAPRI. 

The Board has carefully considered the Veteran's lay statements, his relevant VA treatment records, the July 2017 Headaches DBQ and attached report from the private physician, and the VA examinations afforded to the Veteran in July 2021 and August 2023. After engaging in a thorough and holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's headache disability, the Board finds that the evidence of record is in, the very least, approximate balance that a 50 percent rating is warranted for the entire period on appeal. Lynch, 21 F.4th at 781. In this case, the Board finds the Veteran's lay statements regarding the severity, duration, and frequency of his headache disability to be more probative than the findings of the July 2021 and August 2023 VA examiners which discredit his lay statements and are based upon inaccurate factual premises. See Caluza, 7 Vet. App. at 511-12; Pierce, 18 Vet. App. at 445 (holding that a headache disorder need only be "capable of producing" economic inadaptability); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely"); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (requiring the Board to ensure that medical opinions are made on the basis of sufficient facts or data and the application of reliable medical principles). 

The Veteran is competent to report the severity of his symptoms and the mental and physical impairment arising from his migraine headache disability. Layno, 6 Vet. App. at 469; Barr, 21 Vet. App. at 307-08. The Veteran's competent and credible lay statements regarding the impairment arising from his migraine headaches are corroborated by his VAMC treatment records and the findings of the July 2017 private physician. This evidence regarding the severity, frequency, and duration of the Veteran's migraine headaches places the record in, at the very least, approximate balance that a 50 percent rating is warranted for the entire period on appeal. Bufkin, 75 F.4th at 1374. In resolving reasonable doubt in favor of the Veteran and finding that a 50 percent rating is warranted from March 26, 2014, forward, the Board finds his March 2023 lay statement to be particularly probative. Id. 

An initial rating of 50 percent is thus granted for the entire period on appeal. Swain, 27 Vet. App. at 224; Lynch, 21 F.4th at 781; 38 C.F.R. § 4.6. In so finding, the Board has resolved all reasonable doubt in favor of the Veteran. Id.

2. From March 26, 2014, to October 27, 2021, entitlement to an initial disability rating in excess of 70 percent for depression disability is denied. 

The Veteran seeks a rating in excess of 70 percent for his depression disability and contends that it is more severe than currently rated. See November 2023 Third Party Correspondence. In consideration of his 100 percent rating from October 28, 2021, forward and his continuous pursuit of his claim for an initial disability rating since the July 2021 rating decision which awarded service connection, the Board evaluate the evidence of record from March 26, 2014, to October 27, 2021, to determine when an increase in the Veteran's depression disability was factually ascertainable. See Swain, 27 Vet. App. at 224; 38 C.F.R. § 3.2500.

Prior to October 28, 2021, the Veteran's depression disability is rated as 70 percent disabling under DC 9434 which rates major depressive disorder pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9434. To warrant a 100 percent rating, the evidence must be in, the very least, approximate balance that there was 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 and place, and memory loss for names of close relatives, own occupation, or own name.

Evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443.

The Veteran's brothers and sister described him in August 2016 and September 2016 lay statements. See March 2021 Buddy/Lay Statements. They detailed that post-service, they witnessed the Veteran become more withdrawn and isolated, he was depressed and used alcohol to cope with his symptoms, and that his social isolation, depression, irritability, and anger issues had increased over time.  

In support of his claim of entitlement to service connection, the Veteran submitted an October 2016 Mental Disorders DBQ and report from a private physician in August 2017. See August 2017 DBQ - Veteran Provided. During his interview with the private physician, the Veteran reported that his medical problems had caused continuous depression and anxiety, social and relational problems, communication problems, feelings of social detachment, withdrawal, and isolation, that he was easily irritable/agitated, that he avoided crowds and public places, experienced a lack of affection and intimacy, and had difficulty establishing and maintaining effective relationships. The Veteran further detailed he experienced panic attacks two to three times a week, chronic sleep impairment, difficulty falling and staying asleep because his mind raced due to anxiety, stress, and worry, and that he slept two to three hours per night. Further, the Veteran noted his sleep was interrupted by nightmares three times a week and that he also awakened at night due to tinnitus and chronic headache pain. The private physician noted that the Veteran had a marked diminished interest or pleasure in normal activities, a flattened affect, low self-esteem and self-worth, inappropriate guilt, appetite changes, daytime fatigue, psychomotor agitation or retardation, fatigue or loss of energy, a diminished ability to think or concentrate, and suicidal ideation with or without specific plan. 

The Veteran further detailed that his weekly panic attacks increased in social, work, or public places and that he experienced issues with impulse control and unprovoked irritability with or without violent behavior. The Veteran reported that was easily angered, irritable, and sometimes verbally aggressive towards others but with no physical violence. The Veteran stated that he had problems with both short- and long-term memory, was often forgetful, and had to make notes or be reminded of things on a daily basis. The Veteran stated that he had difficulty with communication and understanding what is asked of him, and the examiner noted that his intermittently appeared to be illogical at times. Regarding daily activities, the Veteran reported that he stayed at home, did not go anywhere or do anything, watched television, and napped due to his nighttime insomnia. The Veteran reported that his medications made him feel tired, and that he had difficulty performing daily activities of living and neglected household chores and tasks. The Veteran further detailed that he neglected personal hygiene and did not shower up for up to a week and said he had gone two to three weeks without showering.

Turning to the attached Mental Disorders DBQ, therein, the private physician diagnosed the Veteran with depressive disorder with anxious distress features which were aggravated by medical conditions. The private physician found that the Veteran experienced the symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long term memory, i.e., retention of only highly learned material while forgetting to complete tasks, flattened affect, intermittently illogical, obscure, or irrelevant speech, difficulty and understanding complex commands, impaired judgment, impaired abstract thinking, and gross impairment of thought processes or communications. The private physician further found that the Veteran experienced disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work like setting, an inability to establish and maintain effective relationships, suicidal ideation, spatial disorientation, neglect of personal appearance and hygiene, disorientation to time or place, and the intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene. The private physician concluded that the Veteran's depression disability resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood and precluded gainful employment. 

The Veteran underwent a VA examination in September 2017. See September 2017 Mental Disorders DBQ. Therein, the examiner diagnosed the Veteran with unspecified depressive disorder and noted his reports of homelessness, frequent changes in jobs, and periods of unemployment. The examiner noted that the Veteran was casually dressed in somewhat dirty clothes, wore sunglasses throughout the interview, his grooming was adequate, and he was alert and oriented times to person, time, place, and situation. The examiner further noted that the Veteran's speech was fluent, his thought processes were coherent although somewhat vague, and his affect was guarded. The examiner found that the Veteran's symptoms of depressed mood and anxiety resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or that his symptoms were controlled by medication.

The Veteran underwent a second VA examination in July 2021. See July 2021 Mental Disorders DBQ. Therein, the examiner diagnosed the Veteran with a mood disorder due to a known physiological condition with mixed features. The examiner observed that the Veteran was casually and appropriately dressed, had good eye contact, and no psychomotor agitation was present. The examiner found that the Veteran's thought content and processes were normal, his affect was flat, and that his attention and concentration were intact. The Veteran's speech was normal in rate, volume, and tone and his insight and judgment were normal. The examiner found that the Veteran's symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or work like setting, inability to establish and maintain effective relationships resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, thinking and/or mood.

After the AOJ attempted to reduce the Veteran's disability rating from 70 to 50 percent, the Veteran submitted a lay statement in support of his claim. He wrote therein:

I do not believe this rating reduction is warranted because my symptoms have not improved. Instead, my mental health issues have continued to get worse and have become increasingly debilitating. Currently I experience high anxiety and I have panic attacks at least once a day. I worry about everything, all the time. I have difficulty adapting to stressful situations and I am overwhelmed easily. I have extreme difficulty concentrating and I leave tasks unfinished often. It is frustrating for me and this inability to cope with stress makes my other psychiatric symptoms worse. For example, I have feelings of harming myself occasionally and though the thoughts are fleeting, I do create a plan. I have many obsessive rituals and I like things to be a certain way. I thrive on routine. I have difficulty forming and keeping relationships. I prefer to be alone, and I have withdrawn a lot. I do not like to be around crowds or strangers, and I keep to myself. My hygiene habits have declined, and I go days between shaving. I sometimes go a few days between showers. Some of it is my low motivation and I have a lot of down, sad days.

Since receiving notice of the proposed rating reduction, I have had even more anxiety and stress. I have more bad days than good. My appetite has changed, and I can hardly eat or sleep at all and I barely leave my home. I'm easily distracted and overwhelmed. For these reasons, I do not believe that there should be a reduction in my rating for depressive disorder.

See December 2022 Correspondence. 

The Board has carefully considered the Veteran's lay statements, as well as the lay statements from his brothers and sisters, his relevant VA treatment records, the October 2016 private psychiatric report and medical opinion, and the VA examinations afforded to the Veteran in September 2017 and July 2021. After engaging in a thorough and holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's acquired psychiatric disability, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that the evidence weighs against a finding that his depression disability warrants a 100 percent rating at any point prior to October 28, 2021. See Vazquez-Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22; Mauerhan, 16 Vet. App. at 443.

First, the Board turns to the October 2016 Mental Disorders DBQ and the attached report from the Veteran's private physician which posits that the Veteran experienced symptoms of gross impairment of thought processes or communications, spatial disorientation, disorientation to time or place, and the intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene. While a careful review of the Veteran's VA medical treatment records during the period on appeal reveal his reports of depression and anxiety which persisted despite the use of medication, a thorough analysis of the Veteran's numerous and frequent encounters with medical treatment providers from March 2014 to September 2022 consistently show that the Veteran was found to be logical, appropriate, coherent, and oriented and do not contain any findings or reports of gross impairment of thought processes or communications, spatial disorientation, or disorientation to time or place. See September 2022 CAPRI. Similarly, these encounters do not contain any reports or findings that the Veteran experienced other symptoms which would support a finding of total occupational and social impairment such as grossly inappropriate behavior, that the Veteran was a persistent danger of hurting himself or others, or memory loss for names of close relatives, own occupation, or own name. 

To the extent that the Veteran has reported the intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene, there is no evidence in the Veteran's VA treatment records showing his reports of or any findings by medical treatment providers regarding same. See September 2022 CAPRI. In fact, in all encounters with medical treatment providers throughout the period on appeal, there are no reports of or findings that the Veteran's hygiene, or his ability to the acts required of keeping oneself clean and presentable, was compromised. Thus, while the Board is sympathetic to the Veteran's claims and does not doubt that his depression made performing the acts required of keeping oneself clean and presentable difficult, these reports, on their own, are insufficient to support the Board's assignment of a 100 percent disability rating. Caluza, 7 Vet. App. 511-12.

Further in support of the Board's finding that the symptoms of gross impairment of thought processes or communications, spatial disorientation, disorientation to time or place, and the intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene made by the private physician are incongruous with the evidence of record are the September 2017 and July 2021 VA examination reports which are also devoid of any reports or findings that the Veteran experienced same. Similarly, a thorough analysis of examination reports after the Veteran was assigned a 100 percent rating are also bereft of these symptoms or findings of total occupational and social impairment. See February 2022 and March 2022 Mental Disorders DBQs.   

Said another way, there is no other lay and medical evidence which corroborates that the Veteran experienced symptoms of gross impairment of thought processes or communications, spatial disorientation, disorientation to time or place at any point during the period on appeal. Indeed, his December 2022 lay statement shows that he is logical and coherent. As the examiner's findings to this effect are inconsistent with the totality of the medical record, they are therefore of less probative weight, and are insufficient to support a finding that the Veteran's disability warranted a 100 percent rating. Caluza, 7 Vet. App. 511-12.

To be clear, the Board does not doubt the severity of the Veteran's depression disability, and in denying a rating in excess of 70 percent, has greatly considered his lay statements regarding same. Layno, 6 Vet. App. at 469. The Veteran is certainly competent to report the symptoms of his depression, as his siblings are competent to report what they have witnessed. Id. However, a disability that justifies a 100 percent rating is so severely disabling that some of the examples of symptoms include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time and place, and memory loss for names of close relatives, own occupation, or own name. Moreover, there is no evidence in the Veteran's claims file that he or his siblings are medically competent to determine the severity of his depression disability according to the applicable rating criteria. See 38 C.F.R. § 3.159(a)(1). The lay statements of the Veteran and his siblings are thus probative but insufficient to support a finding of a 100 percent rating. Caluza, 7 Vet. App. 511-12.

Put simply, the medical and lay evidence from March 26, 2014, until the November 2022 rating decision militates against a finding that the Veteran's exhibited symptoms consistent with a 100 percent rating or that or that the severity, frequency, and duration of his symptoms of his depression caused occupational or social impairment equivalent to what would be assigned in the 100 percent rating. Mauerhan, 16 Vet. App. at 443. While the Board will not disturb the AOJ's finding that his disability warranted a 100 percent rating from October 28, 2021, forward, it is precluded from awarding a 100 percent rating prior to October 28, 2021, where the evidence does not merit it. 

In sum, a 100 percent disability rating for total occupational and social impairment has not been shown at any point during the period on appeal and is thus not warranted in this case. See Vazquez-Claudio, 713 F.3d at 117; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan, 16 Vet. App. at 442. As there is no doubt herein to resolve, a rating in excess of 70 percent is denied from March 26, 2014, to October 27, 2021. Lynch, 21 F.4th at 781. 

3. From March 26, 2014, to October 27, 2021, entitlement to TDIU is granted. 

The Veteran seeks TDIU and contends that he was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. See November 2023 Third Party Correspondence. He is in receipt of a 100 schedular disability rating from October 28, 2021, forward and given that the issue of entitlement to a TDIU came to the Board as part and parcel of his claims for higher disability ratings for his depression and migraine headache disabilities, the date of claim for his entitlement to a TDIU from March 26, 2014, to October 27, 2021, remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding inferred TDIU claims are part and parcel of underlying increased rating claim); Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018).  After a thorough and holistic review of the Veteran's claims file, the Board finds that a TDIU rating is warranted from March 26, 2014, to October 27, 2021. The reasons follow. 

Total disability will be considered to exist where there is present an impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to the Veteran's age or the impairment caused by any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a result of this decision, the Veteran is receipt of a 70 percent rating for his depressive disorder and a 50 percent rating for his headache disability. He is also in receipt of a 10 percent rating for tinnitus and a zero percent, or noncompensable rating for hearing loss during the period on appeal. As the Veteran's combined disability rating during the period on appeal is 90 percent, he therefore meets the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). 

In determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to:

The Veteran's history, education, skill, and training; whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). However, the responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner, rather, a medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The finding of an ability to work is not a medical determination, but is a legal determination made on a case-by-case basis. See Withers v. Wilkie, 30 Vet. App. 139 (2018); Geib, 733 F.3d at 1354. This decision is based on a review of medical and lay evidence presented in light of each Veteran's education, training, and work history. Id. 

Turning first to the economic component in Ray, a careful analysis of the Veteran's claims file shows that he has not been gainfully employed since 2008. See January 2022 Medical Treatment Records - Furnished by SSA; see also October 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The record does not show, and the Veteran does not contend, that he was marginally employed, including in a protected work environment, during the period on appeal. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017); Labruzza v. McDonough, 37 Vet. App. 111 (2024). Notably, the Veteran was determined to be disabled by the Social Security Administration (SSA) as a result of his non-service connected lumbar spine and service connected depressive disability and has been in receipt of SSA disability payments for same for the entire of the period on appeal. See January 2022 Medical Treatment Records - Furnished by SSA.

To this end, the Board has carefully examined the Veteran's claims file and finds that the evidence makes clear that the aggregate mental impairment arising from the Veteran's service-connected disabilities was marked and totally precluded the Veteran's employment, including in a semi-sedentary or sedentary environment, from March 26, 2014 to October 27, 2021. See Ray, 31 Vet. App. at 73; Withers v. Wilkie, 30 Vet. App. 139 (2018); Mirriam Webster Dictionary Online (defining "marked," as "having a distinctive or emphasized character."). Indeed, the evidence shows that the Veteran's tinnitus and migraine headache disabilities impaired his ability to concentrate, focus, and complete occupational tasks. See July 2017 Headaches DBQ; Ray, 31 Vet. App. at 73 (addressing the non-economic TDIU component of physical capability); Mirriam Webster Dictionary Online (defining "severe," as "causing discomfort or hardship;" "very painful or harmful;" "of a great degree;"). According to the Veteran's private physician, he would miss approximately 10 days and leave early about 10 days per month as a result of his headache disability. Id. Nearly daily, the Veteran would not be able to stay focus for at least seven of eight hours of a workday. Id. The Veteran's chronic sleep impairment, depressed mood, anxiety, suspiciousness, panic attacks, and mild memory loss would also cause memory problems and issues with concentration, and would have a marked effect on his ability to adapt to change, handle workplace stress, interact and get along with coworkers, and establish and maintain effective work relationships. See July 2021 Mental Disorders DBQ. The evidence also shows that the Veteran's chronic fatigue arising from his sleep disturbances would moderately affect the Veteran's physical endurance and ability to sit, stand, or walk for periods of time. See id.; Ray, 31 Vet. App. at 73. The Veteran would also have difficulty understanding speech arising from his service-connected hearing loss, and the ringing-sensation in his ears as a result of his tinnitus would interfere with communication. See October 2014 Hearing Loss and Tinnitus DBQ. 

Next, the Board must consider the extent of the effect of the Veteran's physical and mental impairments have on the type of employment for which he is qualified. The evidence shows that the Veteran has a high school education and previous experience in food service, die casting, welding, and assembly line work. See October 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; January 2022 Medical Treatment Records - Furnished by SSA. Here, the evidence shows that the marked mental and moderate physical occupational impairment from the Veteran's service-connected depression, headache, and tinnitus, together, produced a marked effect on the Veteran's ability to secure or follow substantially gainful employment, including in a semi-sedentary or sedentary environment. The marked effect of the Veteran's occupational impairment from his service-connected disabilities are corroborated by his competent and credible lay statements, which in turn, are substantiated by the medical evidence discussed above. In so finding, the Board finds the lay and medical evidence discussed above, to be probative evidence that TDIU is warranted. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 

In granting the Veteran's claim for TDIU, the Board acknowledges the findings of the October 2016 private physician in his employability assessment of the Veteran that his depression was, on its own, of such severity as to totally preclude the Veteran's employment. See August 2017 DBQ - Veteran Provided. As discussed above, the private physicians findings have been found by the Board to be unsupported by the other lay and medical evidence in the Veteran's claims file. Similarly, this finding is contradicted by other competent evidence in the record that the Veteran experienced occupational impairment from nonservice connected lumbar spine and service-connected headache, hearing loss, and tinnitus disabilities during the period on appeal. See September 2022 CAPRI; January 2022 Medical Treatment Records - Furnished by SSA. It is thus of little probative weight. Caluza, 7 Vet. App. 511-12. 

Considering the foregoing, and when viewing the available evidence of record in its entirety, the Board finds that the Veteran's service-connected depression, hearing loss, tinnitus, and headache disabilities, together, precluded him from securing or following all forms of substantially gainful occupation during the period on appeal, including employment in a semi-sedentary or sedentary environment. Here, the central "question is whether the Veteran is capable of performing the physical and mental acts required by employment," and "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When resolving reasonable doubt in favor of the Veteran, the answers to those questions result in a grant of the Veteran's claim for a TDIU from March 26, 2014, to October 27, 2021.  

4. Entitlement to an earlier effective date for the award of DEA benefits of March 26, 2014, but no earlier, is granted.

Basic eligibility for certification of Dependents' Educational Assistance exists if the Veteran was discharged from service under conditions other than dishonorable, or died in service, and either (1) has a permanent total service-connected disability, or (2) a permanent total service-connected disability was in existence at the date of the Veteran's death, or (3) died as a result of a service-connected disability, or, if a service member (4) is on active duty as a member of the Armed Forces and, for a period of more than 90 days, has been listed by VA concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in the line of duty by a foreign government or power. 38 C.F.R. § 3.807.

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The effective date for basic eligibility for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. The Board's award of a TDIU rating from March 26, 2014, forward above satisfies the requirement for a permanent and total disability. Accordingly, March 26, 2014, is the earliest possible date that the evidence shows that the Veteran has a total disability that is permanent in nature. The Veteran is currently in receipt of an October 28, 2021, effective date for the award of DEA benefits. Accordingly, entitlement to an earlier effective date of March 26, 2014, but no earlier, for DEA benefits is granted.

 

 

DUSTIN L. WARE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Buntin, M.E.

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.