Citation Nr: 18139663
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-17 335
DATE:	September 28, 2018
ORDER
Entitlement to service connection for migraine headaches, to include as secondary to a service-connected anxiety disorder is granted.
Entitlement to an initial disability rating of 50 percent, but not higher, for an acquired psychiatric disorder, to include an anxiety disorder is granted.
FINDINGS OF FACT
1. The Veteran’s migraine headaches are aggravated by his service-connected anxiety disorder. 
2.  The Veteran’s anxiety disorder manifests in occupational and social impairment with reduced reliability and productivity due to such symptoms as impairment of short-term memory, impaired judgment, disturbances of mood and motivation, difficulty establishing and maintaining effective social relationships.
CONCLUSIONS OF LAW
1. The criteria for service connection for migraine headaches are met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
2. The criteria for an evaluation of 50 percent, but not higher, for an anxiety disorder have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Marine Corps from August 1973 to December 1973.
In August 2016, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the St. Petersburg Regional Office.  A transcript of that hearing is included in the claims file.
Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a “competent” source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.
While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011).  Contemporaneous records can be more probative than history as reported by a veteran.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.  § 5107(b).
1. Entitlement to service connection for migraine headaches, to include as secondary to a service-connected anxiety disorder
The Veteran claims entitlement to service connection for migraine headaches.  
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995).
At present, the Board acknowledges that the Veteran has a current migraine headache disability.  A December 2015 VA headaches examination confirmed the Veteran’s diagnosis of migraine headaches.  The December 2015 VA examiner opined that based on a review of the Veteran’s medical history, service and medical treatment records, in-person examination, it was less likely than not that the Veteran’s headaches were proximately due to or the result of the Veteran’s service-connected disabilities.
However, in January 2016, at a VA mental disorders examination, the VA examiner stated the following:
[The] Veteran's subjective stress level results in chronic anxiety with depressive [symptoms] and headaches.  His anxiety is seen as a likely factor in the frequency and intensity of these headaches though he has not been [service-connected] for them and it was noted in [the] most recent exam that he experienced headaches in childhood, his current anxiety and poor sleep (which are [service-connected]) is a likely factor and can be considered aggravation of a nonservice-connected headache by a service-connected disorder.
In light of the above discussed evidence, the Board finds that the medical evidence of record is at least in equipoise as to whether the Veteran’s migraine headaches are aggravated by his service-connected anxiety disorder.  Accordingly, the Board finds entitlement to service-connection for migraine headaches is warranted. 
In finding in favor of the Veteran, the Board has considered the negative by the December 2015 VA examiner.  However, “[a] Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  “Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in “relative equipoise, the law dictates that the Veteran prevails.”  Id. 
2. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder, to include an anxiety disorder
In a March 2012 rating decision, the Veteran was granted service-connection and assigned a 30 percent disability rating for an unspecified anxiety disorder, effective July 2011.  The Veteran claims entitlement to a disability rating in excess of 30 percent.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability.  38 C.F.R. § 4.1.  Where two disability ratings are potentially applicable, the higher rating 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.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.”  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).
The Veteran's anxiety disorder is currently rated under Diagnostic Code 9413.  38 C.F.R. § 4.130, Diagnostic Code 9413. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130.  Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130  demonstrates that the symptoms after that phrase 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.  See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan, 16 Vet. App. at 442. Entitlement to a specific disability rating, however, requires "sufficient symptoms of the kind listed in the [relevant rating] requirements, or others of similar severity, frequency[,] or duration." Vazquez-Claudio, 713 F.3d at 118. "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment."  Id.  
Pursuant to Diagnostic Code 9413, an anxiety disability is rated 30 percent disabling when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events).  38 C.F.R. § 4.130, Diagnostic Code 9413.
A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity 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. Id.
A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. Id.
The Veteran’s anxiety disorder was initially evaluated in a February 2012 VA mental disorders examination.  At examination, the Veteran was diagnosed with a nonspecific anxiety disorder.  The VA examiner noted that the Veteran exhibited symptoms of chronic sleep impairment, disturbances in mood, nightmares, difficulty adapting to change, anxiety, and depression.  The Veteran reported being unable to sleep for multiple days at a time. Upon examination, the Veteran was cooperative, appropriately dressed and groomed, had normal affect and speech pattern, average intelligence, appropriate behavior, and good judgement.  The 
In January 2016, the Veteran once again completed a VA mental disorders examination.  At examination, the VA examiner noted symptoms of anxiety, depression, impaired concentration, moderately impaired ability to establish and maintain relationships with coworkers and supervisors, and moderately impaired ability to respond to changes in the workplace.  The examiner noted that the Veteran was completed normal activities of daily living and was capable managing his own finances.  The Veteran was appropriately dressed with good hygiene and grooming, demonstrated normal rate of speech, and appropriate affect.  The Veteran denied hallucinations or delusions, and homicidal and suicidal ideation.  The examiner noted that the Veteran’s anxiety disorder most accurately was represented by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.
At an August 2016 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran and his wife testified regarding the severity of the Veteran’s anxiety disorder.  The Veteran and his wife testified to outbursts of anger occurring more than once per week, disturbances of motivation and mood, difficulty maintaining effective work and social relationships, anxiety, depression, chronic sleep impairment, impairment with short-term memory, impaired judgment, and impaired concentration.  As noted above, the Veteran is competent to report (1) symptoms observable to a layperson.  See Davidson, 581 F.3d 1313.  The Board finds that the Veteran and his wife have submitted competent and credible evidence in this regard.   
Finally, the Board also acknowledges that the Veteran’s VA treatment and private medical records note complaints of and treatment for an anxiety disorder.  However, these records do not address the specific rating criteria necessary to determine severity.  In determining the actual degree of disability, the examination findings are more probative of the degree of impairment.
Based on the above discussed evidence, the Board finds that the Veteran’s anxiety disorder manifests in occupational and social impairment with reduced reliability and productivity due to such symptoms as: difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  Accordingly, the Board finds that the Veteran’s anxiety disorder is most accurately reflected by the criteria for a 50 percent disability rating.  38 C.F.R. § 4.130, Diagnostic Code 9413.  
The Veteran does not meet the criteria for a 70 percent disability rating because the evidence of record does not establish occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships.  Id.  There is no evidence of record of  impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships.  Id.  
To the extent that the Board herein denies a rating in excess of 50 percent, the preponderance of the evidence is against such an award.  Therefore, the benefit of the doubt doctrine is not applicable in such regard, and higher ratings are not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Riordan, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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