Citation Nr: 18160704
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-10 553A
DATE:	December 27, 2018
Entitlement to a rating of 50 percent for migraine headaches is granted.
Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder is remanded.
For the period on appeal, the Veteran’s migraine headaches manifested with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  
The criteria for entitlement to a rating of 50 percent for migraine headaches have been met.  38 U.S.C. § 1155, 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Veteran served on active duty in the United States Navy from July 1991 to July 1995.  This matter comes before the Board from an February 2012 rating decision.  
1. Entitlement to a rating of 50 percent for migraine headaches
Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.
Under Diagnostic Code 8100 for migraine, a 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
The Veteran is entitled to a 50 percent rating for her headache disability.  VA treatment records preceding and following her November 2011 VA examination note very frequent prostrating and prolonged attacks productive of migraine headache pain.  Notably, VA treatment records dated after the examination document instances of the Veteran requesting notes for work due to her migraines. Reference is made to a November 2013 note discussing the Veteran’s request to ge authorization for advanced sick leave and/or leave donation.

At the November 2011 VA examination, the Veteran indicated that she experienced migraine headaches on a weekly basis. She said she would tolerate the headaches for as long as possible but would eventually seek treatment at the emergency rooms. She reported going to the emergency room three times in the previous two month and missing days of work due to a migraine headache. However, for reasons not made clear, the examiner noted that the frequency of the prostrating headaches was monthly. 
The Board finds that the record supports a find that the Veteran has very frequent, prostrating and prolonged attacks that severely impact the Veteran’s ability to work as evidenced by missing work to seek treatment for the migraine headaches.  A rating of 50 percent for migraine headaches is warranted. The 50 percent rating is the maximum rating assignable for migraine headaches. There are no appropriate rating codes that would provide for a higher rating. 
1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and major depressive disorder is remanded.
The Veteran contends that her current psychiatric disorders are related to her military service.  She relates that she was a victim of an in-service personal assault and that she witnessed bombings in Bahrain and feared for her life.  
The Veteran’s private and VA medical records indicate various mental health diagnoses including PTSD, major depressive disorder, and bipolar disorder.  The Board has recharacterized the claim for service connection for an acquired psychiatric disorder, to include PTSD and depression.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  This alteration is made in recognition of the varying diagnoses of record.
Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM) as the governing criteria for diagnosing PTSD. The Board notes VA implemented DSM-5, effective August 4, 2014, and such applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45, 093, 45,094 (Aug. 4, 2014). As the RO certified the Veteran’s appeal to the Board on April 28, 2016, DSM-5 applies.
At a March 2015 VA examination, the examiner found that the Veteran did not meet the criteria for PTSD under the DSM-5.  The examiner determined that there were no markers to substantiate the Veteran’s claimed in-service personal assault.  The examiner did not address that the Veteran’s report that the assault resulted in a pregnancy, and that the Veteran’s Service Treatment Records (STRs) note that the Veteran was pregnant after the alleged personal assault.  It is also unclear as to why the examiner did not consider the Veteran’s report of being raped and beaten by her husband, while in service, to be a personal assault. Additionally, the examiner did not discuss the Veteran’s fear in Bahrain as an in-service stressor.  The examiner concluded that a PTSD diagnosis could not be confirmed because of reports of preservice and post-service abuse and medical conditions that exacerbate her mental health concerns.  The examiner further determined that the Veteran’s depressive disorder was less likely than not related to her military service.    
A subsequent VA examiner in March 2015 reviewed the Veteran’s medical files and diagnosed the Veteran with unspecified depressive disorder, but determined that a diagnosis of PTSD was not possible without resorting to mere speculation.  The examiner could not determine which trauma, preservice, in-service, or post-service may have led to any possible PTSD.  Additionally, the examiner opined that the Veteran’s depressive disorder was less likely than not related to in-service events.  The examiner noted that the Veteran had previously endorsed preservice assault by a grandparent, but has since denied any preservice events that could be a PTSD stressor.  The examiner also noted that the Veteran’s VA treatment records over the past two years focused on current life stressors and their contribution to the Veteran’s depressive disorder.  
The Board notes a PTSD diagnosis and the positive nexus opinion from Dr. J.A., but as his diagnosis was under the DSM-4, it is insufficient to warrant a grant of service connection.  However, as the VA examiners did not fully address the Veteran’s contention that she was the victim of an in-service personal assault, to include the in-service pregnancy which she alleges was a result of the assault, or the Veteran’s alleged stressors in Bahrain, another VA examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).  
The matters are REMANDED for the following action:
1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. Following a review of claims file, examination, and appropriate testing (if needed), the examiner should address the following:
(a.) Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period.  The examiner should specifically state whether the criteria for a diagnosis of PTSD has been met.
(b.) If a diagnosis of PTSD is made, the stressor(s) should be identified.
(c.) The examiner should state whether it is at least likely as not that the Veteran was the victim of an in-service personal assault.  
(d.) For all acquired psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not had its onset in service or within a year of service separation or is otherwise etiologically related to her active service, to include the alleged in-service personal assault.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Rekowski, Associate Counsel 

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