Citation Nr: 18160630
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-54 528
DATE:	December 27, 2018
ORDER
An initial evaluation in excess of 20 percent for cervical spine degenerative disc disease (DDD) and degenerative joint disease (DJD) is denied.
An initial evaluation in excess of 20 percent for lumbar spine degenerative disc disease (DDD) status post fusion is denied.
An initial compensable evaluation for lower back residual surgical scar and left hemithorax scars is denied.
A compensable evaluation from September 25, 2013 through September 7, 2016, and in excess of 50 percent from September 8, 2016, for headache syndrome with migraine features is denied.
An evaluation in excess of 50 percent from September 25, 2013 through October 15, 2014 for posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol abuse is denied.
REMANDED
The issue of an increased evaluation in excess of 20 percent and an earlier effective date for radiculopathy, sciatic nerve, left lower extremity is remanded.
The issue of an effective date earlier for special monthly compensation based on housebound criteria is remanded.
The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran’s cervical spine DDD and DJD at worst had forward flexion to 30 degrees, and did not manifest as favorable or unfavorable ankylosis of the entire cervical spine or the entire spine.
2. The Veteran’s lumbar spine DDD status post fusion at worst had forward flexion to 55 degrees, and did not manifest as unfavorable ankylosis of the entire thoracolumbar spine or the entire spine.
3. The Veteran’s scars are not painful or unstable, do not manifest with visible or palpable tissue damage or loss, and measure seven centimeters at most.
4. From September 25, 2013 through September 7, 2016, the Veteran’s headache syndrome did not manifest as prostrating attacks.  From September 8, 2016, the Veteran has been in receipt of the highest evaluation available for headache syndrome with migraine features. 
5. From September 25, 2013 through October 15, 2014, the Veteran’s psychiatric disorders did not manifest as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 20 percent for cervical spine DDD and DJD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).
2. The criteria for an initial evaluation in excess of 20 percent for lumbar spine DDD status post fusion have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5241, 5243 (2017).
3. The criteria for a compensable evaluation for lower back and left hemithorax scars have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7805 (2017).
4. The criteria for a compensable evaluation from September 25, 2013 through September 7, 2016, and in excess of 50 percent from September 8, 2016, for headache syndrome with migraine features have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8100 (2017).
5. The criteria for an evaluation in excess of 50 percent from September 25, 2013 through October 15, 2014 for posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol abuse have not been met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9411 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 2002 to June 2006, and January 2011 to September 2013.
Effective October 2014, the Veteran is in receipt of a 100 percent schedular evaluation for PTSD and a grant of special monthly compensation. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2013, December 2014, and September 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO).  The Agency of Original Jurisdiction is Cheyenne, Wyoming.
The Veteran stated in his Notice of Disagreement (NOD) and Form 9 substantive appeal the he is appealing the effective dates of service connection for each issue currently before the Board.  In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2).  
The Veteran was found physically unfit to continue in service due to PTSD and a lumbar spine disability.  He was discharged from service on September 24, 2013.  Service connection for each disability currently on appeal was granted September 25, 2013.  As the day after separation from active service is the earliest possible effective date, no earlier effective date is permissible.
Increased Ratings Criteria
Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned.  The additional diagnostic code is shown after the hyphen.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided.  Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).
Spine
Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes).  Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  38 C.F.R. § 4.71a, DC 5242.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40 (2017).  It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all of these elements.  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.  A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id.
In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  Additionally, the Court has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating based on loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.”  Id. at 206.
For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note (5).
1. Entitlement to an initial evaluation in excess of 20 percent for cervical spine DDD and DJD
The Veteran contends he is entitled to a disability evaluation in excess of 20 percent for cervical spine DDD and DJD, rated under Diagnostic Codes 5242-5243.
The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent rating is assigned where forward flexion of the cervical spine is to 15 degrees or less; or favorable ankylosis of the entire cervical spine.  A 40 percent rating is assigned where there is unfavorable ankylosis of the entire cervical spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, General Rating Formula.  Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes.  Id. at Note (1).
Normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Id. at Note (2).
At the December 2012 VA examination, the Veteran was diagnosed with cervical spine DDD and DJD.  The Veteran reported having moderate flare-ups on a weekly basis, lasting one to two days.  He stated the flares were triggered by quick head movements, and are relieved with medication.  Upon examination, the Veteran had the following initial range of motion test results: forward flexion to 40 degrees; extension to 20 degrees; left lateral flexion to 30 degrees; right lateral flexion to 20 degrees; left lateral rotation to 60 degrees; and right lateral rotation to 50 degrees.  The Veteran was noted to have objective evidence of pain on motion.  Repetitive range of motion test results were as follows: forward flexion to 30 degrees; extension to 15 degrees; left and right lateral flexion to 20 degrees; and left and right lateral rotation to 40 degrees.  The examiner stated the Veteran had an additional limitation of pain associated with repetitive range of motion testing.  He did not have ankylosis of the cervical spine. 
VA medical records from May 2014 show the Veteran was observed to have full range of motion of the neck.  In May 2015, treatment notes indicate the Veteran reported having constant, worsening neck pain since service discharge.  The following month he received cervical spine facet injections due to chronic pain. 
At a VA examination in September 2016, the Veteran reported that he continues to have neck pain, and that he underwent left medial branch radiofrequency ablation in April 2016.  He stated that he has difficulty driving during flare-ups.  Initial range of motion test results were as follows: forward flexion to 35 degrees; extension to 25 degrees; right lateral flexion to 25 degrees; left lateral flexion to 20 degrees; right lateral flexion to 50 degrees; and left lateral rotation to 55 degrees. Pain with left lateral rotation, and right and left lateral flexion was noted during the examination, but it did not result in a functional loss.  The Veteran did not have any additional loss of motion or function during repetitive range of motion testing, and he was observed to have tenderness on the left side.  He did not have ankylosis, radiculopathy of the upper extremities, neurological abnormalities, or guarding and muscle spasm.  The examiner noted that the Veteran was not examined during a flare-up or following repeated use.  However, the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups.  The examiner also determined that pain, weakness, fatigability or incoordination did not significantly limit the Veteran’s functional ability during flare-ups or following repeated use. 
The preponderance of the evidence is against the claim. The Veteran was never observed to have ankylosis of the spine.  At worst, he had forward flexion to 30 degrees.  The Board has also considered the Veteran’s reports of pain and flare-ups, but finds an increased rating is not warranted.  38 C.F.R. §§ 4.40, 4.45; See also DeLuca, 8 Vet. App. 202 (1995).  The Veteran stated that flare-ups create difficulty with driving, and he was noted to have objective evidence of pain with certain motions.  However, the September 2016 VA examiner found the Veteran’s reports of additional functional loss during flare-ups to be consistent with the medical examination.  Even with pain, the Veteran maintained forward flexion above 15 degrees.  A 20 percent evaluation is most appropriate, as it adequately reflects the Veteran’s cervical spine disability. Therefore, the claim for an increased rating for cervical spine DDD and DJD is denied. 
2. Entitlement to an initial evaluation in excess of 20 percent for lumbar spine degenerative disc disease (DDD) status post fusion
The Veteran contends he is entitled to a disability evaluation in excess of 20 percent for lumbar spine DDD, rated under Diagnostic Codes 5241-5243.
The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is assigned where forward flexion of the thoracolumbar spine is to 30 degrees or less, or if there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula.  Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1).
Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  38 C.F.R. 4.71a, DC 5242, Note (2).
At the December 2012 VA examination, the Veteran was diagnosed with DDD, status post fusion.  He reported having moderate flare-ups every two to three weeks, lasting one to two days.  The flare-ups were caused by lifting, bending, and quick posture changes, and were relieved with medications.  The Veteran also reported having at least three incapacitating episodes of the spine within the last 12 months, lasting two to three days.  Upon examination, the Veteran had the following initial range of motion test results: forward flexion to 60 degrees; extension to 15 degrees; left lateral rotation to 15 degrees; right lateral rotation to 25 degrees; and left and right lateral flexion to 20 degrees.  There was objective evidence of pain on active range of motion, and the Veteran was unable to complete repetitive range of motion testing due to worsening pain.  He did not have ankylosis of the thoracolumbar spine. 
VA medical records from May 2014 show the Veteran sought treatment for back pain flare, caused by overexertion while completing yard work.  He was noted to have a spasm of the lower back.  In October 2015, the Veteran was rear-ended in a motor vehicle accident.  He was treated with pain medication and muscle relaxers, and used a TENS unit to decrease pain.  He reported that his back pain had improved within one week of the accident. 
At the September 2016 VA examination, the Veteran reported that he continued to have low back pain despite having lumbar spine surgery and physical therapy treatment.  He had flare-ups that limited his ability to walk, stand, or climb stairs. The Veteran also reported that he constantly uses a cane for ambulation.  Initial range of motion test results were as follows: forward flexion to 55 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 25 degrees; and right and left lateral rotation to 25 degrees.  Pain was noted during forward flexion and left lateral flexion, but there was no evidence of pain with weight-bearing.  The examiner stated that the Veteran’s abnormal range of motion did not contribute to functional loss, and there was no additional loss of function or range of motion during repetitive use testing.  The Veteran did not have ankylosis, neurologic abnormalities, guarding or muscle spasm.  He was noted to have IVDS, but did not have any episodes within the last 12 months.  Additionally, though the Veteran was not examined during a flare-up or following repeated use over time, the examiner stated the examination was medically consistent with the Veteran’s statements describing functional loss.  Pain, weakness, fatigability, or incoordination did not significantly limit the Veteran’s functional ability during flare-ups or following repeated used over time. 
The preponderance of the evidence is against the claim for an increased disability rating for lumbar spine DDD.  Even considering his subjective complaints, the Board finds that a rating in excess of 20 percent for the Veteran’s service-connected lumbar spine disability has not been met.  While the Veteran indicated that he experienced increased pain during flare-ups, the objective findings consistently show that the Veteran has been able to flex his thoracolumbar spine to more than 30 degrees.  At worst, the Veteran had forward flexion to 55 degrees.  He was not diagnosed with ankylosis of the spine, and though he was noted to have IVDS, he did not have any incapacitating episodes that lasted at least four weeks.
The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain.  The Veteran reported flare-ups cause additional pain with postural movements, walking, and standing.  However, the Veteran’s forward flexion has remained above 30 degrees, and the December 2016 VA examiner concluded the physical examination was medically consistent with the Veteran’s reports of functional loss during a flare-up.  The Board concludes that the back pain associated with the Veteran’s lumbar spine disability does not cause sufficient functional limitation to warrant an evaluation more than 20 percent.  The preponderance of the evidence is against an increased rating for the Veteran’s lumbar spine disability, and the claim is denied.
3. Entitlement to an initial compensable evaluation for lower back residual surgical scar and left hemithorax scars
The Veteran contends a compensable rating is warranted for his scars, rated under Diagnostic Code 7805.  See 38 C.F.R. § 4.118.
Diagnostic code 7805 states that other scars (including linear scars) and any disabling effect(s) for scars rated under diagnostic codes 7800, 7801, 7802, and 7804, which are not considered in a rating provided under diagnostic codes 7800-7804 should be rated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805.
Diagnostic code 7801 states that a scar not involving the head, face, or neck which is deep and nonlinear warrants a rating at 10 percent if the area of the scar is at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square meters).  Note (1) to the diagnostic code states that “A deep scar is one associated with underlying soft tissue damage.”  38 C.F.R. § 4.118, Diagnostic Code 7801. 
Diagnostic code 7802 states that burn scars or scars due to other causes that are not of the head, face, or neck, that are superficial and nonlinear, and that cover an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent rating.  Note (1) states that: “A superficial scar is one not associated with underlying soft tissue damage.”  38 C.F.R. § 4.118, Diagnostic Code 7802. 
Diagnostic code 7804 states that one or two scars that are unstable or painful warrants a 10 percent evaluation.  Three or four scars that are unstable or painful warrants a 20 percent evaluation.  Note (1) to the diagnostic code states that “An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.”  Note (2) states that “If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.”  Note (3) states: “Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable.”  38 C.F.R. § 4.118, Diagnostic Code 7804. 
At the December 2012 VA examination, the Veteran was noted to have scars on his back and chest.  Upon physical examination, the examiner observed one surgical scar on the Veteran’s lower back, measuring one centimeter wide and five centimeters long.  The Veteran also had two scars on the left side of his chest, the first scar measuring one centimeter wide and five centimeters long, and the other less than one centimeter wide and seven centimeters long.  The scars were not painful, and showed no signs of skin breakdown, inflammation, edema, keloid formation, or any other disabling effects. 
At the September 2016 VA examination, the Veteran reported he had no problems with any of his scars.  The examiner described the Veteran’s scars as superficial and non-linear, and determined they were not painful or unstable. 
The Board finds that a compensable rating is not warranted for the Veteran’s service-connected scars.  The Veteran’s scars are superficial, not painful or unstable, do not manifest with visible or palpable tissue damage or loss, and measure seven centimeters, at most.  The claims file does not contain any additional records regarding the Veteran’s scars that would support his claim for an increased disability evaluation.  Given these facts, the Board finds that a noncompensable rating adequately reflects the current disability associated with the Veteran’s back and chest scars.
4. Entitlement to a compensable evaluation from September 25, 2013 through September 7, 2016, and in excess of 50 percent from September 8, 2016, for headache syndrome with migraine features
The Veteran contends he is entitled to a compensable rating for headache syndrome from September 25, 2013 through September 7, 2016, and in excess of 50 percent from September 8, 2016.  The rating for the Veteran’s migraine headache disability has been assigned pursuant to Diagnostic Code 8100. 
Diagnostic Code 8100 states that a noncompensable rating is assigned for migraine headaches with less frequent attacks.  A 10 percent rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in 2 months over last several months.  A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months.  A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Rating Schedule does not define prostrating.  However, “prostration” has been defined as “complete physical or mental exhaustion.”  Merriam-Webster’s New Collegiate Dictionary 999 (11th ed. 2007).  “Prostration” has also been defined as “extreme exhaustion or powerlessness.”  Dorland’s Illustrated Medical Dictionary 1554 (31st ed. 2007).  Additionally, the term “productive of severe economic adaptability” have not been clearly defined by regulations or by case law. “Productive of” can either have the meaning of producing or capable of producing. Thus, migraines need not actually produce severe economic inadaptability to warrant a 50 percent rating.  “Economic inadaptability” does not mean unemployability, as that would undermine the purpose of regulations pertaining to unemployability.  Pierce v. Principi, 18 Vet. App. 440 (2004); 38 C.F.R. § 4.16 (2012). 
September 25, 2013 - September 7, 2016
Prior to 2012, the Veteran’s in-service treatment notes and physical examination reports are silent regarding complaints of headaches. 
At the December 2012 VA examination, the Veteran was diagnosed with headache syndrome with migraine features.  He reported having a migraine headache once per month during the last 12 months, lasting for one to two days.  The Veteran was not treated with continuous medication.  The VA examiner determined the headaches were not prostrating and ordinary activity remained possible.  However, later within the examination report, the examiner states that regarding the effects of the Veteran’s headaches on his usual daily activities, during the attacks he is “unable to do nothing.”
A February 2013 Medical Evaluation Board report states that the Veteran’s headache syndrome condition did not cause duty limitation that would warrant permanent profiling.  VA treatment notes show that in February 2015, the Veteran was prescribed a daily nasal spray for his migraine headaches. 
Based on a review of the evidence, the Board finds the Veteran is not entitled to a compensable rating for headache syndrome from September 25, 2013 through September 7, 2016.  Though he reported having migraine headaches once per month during the previous 12 months at the December 2012 VA examination, they were not classified as prostrating attacks.  The Board has considered the inconsistency within the December 2012 VA examination report regarding whether the Veteran’s headaches interfere with his daily activities.  However, in-service treatment notes prior to the examination do not indicate the Veteran experienced prostrating attacks due to headaches, and the 2013 report from the Medical Evaluation Board did not find the Veteran’s headaches limited his ability to perform his duties.  The Board also notes that by February 2015, the Veteran was prescribed a daily medication for his migraine headaches.  Yet there is no additional lay or medical evidence dated prior to September 8, 2016 with details regarding a worsening of the Veteran’s headache disability to warrant an increased rating.  Accordingly, a compensable rating for headache syndrome with migraine features is denied from September 25, 2013 through September 7, 2016. 
September 8, 2016 – Present
In a September 2016 rating decision, the RO increased the Veteran’s disability rating for headache syndrome to 50 percent, effective September 8, 2016.  The Board finds that a higher disability evaluation is not available under the migraine rating criteria of Diagnostic Code 8100, as the Veteran is already in receipt of the highest possible rating that can be granted for migraines.  See 38 C.F.R. §§ 4.124a, Diagnostic Code 8100, 4.3, 4.7.
5. Entitlement to an evaluation in excess of 50 percent from September 25, 2013 through October 15, 2014 for posttraumatic stress disorder (PTSD), major depressive disorder, and alcohol abuse
The Veteran contends that from September 25, 2013 through October 15, 2014, his service-connected psychiatric disabilities warranted a rating in excess of 50 percent.  The Board notes that the Veteran has been in receipt of a 100 percent rating for psychiatric disabilities since October 16, 2014. 
A 50 percent evaluation is warranted for PTSD where 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; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); and an inability to establish and maintain effective relationships.  
A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  
The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).
At a January 2013 VA examination, the Veteran reported that he attended group and individual therapy, but had poor results due to interference with treatment caused by not having a consistent therapist.  He denied having suicidal or homicidal ideations, but reported being in physical altercations following his first military deployment in 2006.  The Veteran stated he felt significantly depressed in 2006, and began drinking to cope.  He felt guilt regarding combat-related deployments, and was discouraged about the future.  The Veteran stated he felt ready to leave the military, and planned to obtain a degree criminal justice and work in probation.  The VA examiner diagnosed PTSD.  He stated the Veteran’s symptoms were chronic and included recurrent distressing thoughts and dreams, hypervigilance, feelings of detachment, and estrangement from others.  The examiner concluded that the Veteran’s PTSD symptoms did not cause total occupation and social impairment, and that there was no deficiency in judgment, thinking, family relations, work, or mood.  However, his PTSD symptoms did cause reduced reliability and productivity.
VA mental health treatment notes from February 2014 show the Veteran reported having anxiety, nightmares, and sleep interference.  He also stated he continued to abuse alcohol, but he was not noted to have suicidal ideations. 
The Board finds that between September 25, 2013 and October 15, 2014, the Veteran’s service-connected psychiatric disabilities did not warrant a rating in excess of 50 percent.  The preponderance of the evidence is against finding that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, during the relevant period.  A review of both lay and objective evidence shows the Veteran did not have symptoms of hallucinations, delusions, and suicidal or homicidal ideations.  His symptoms of recurrent distressing thoughts, isolation, and hypervigilance were determined to cause occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating.  Thus, the claim for a disability evaluation in excess of 50 percent is denied.
In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claims, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
REASONS FOR REMAND
1. Entitlement to an initial evaluation in excess of 20 percent and earlier effective date for radiculopathy, sciatic nerve, left lower extremity, and entitlement to an earlier effective date for special monthly compensation based on housebound criteria are remanded.
In October 2016, the Veteran filed a timely notice of disagreement challenging the evaluation and effective date for left lower extremity radiculopathy and the effective date for special monthly compensation in the RO’s September 2016 rating decision.
While the RO acknowledged the Veteran’s notice of disagreement in a November 2016 notification letter, it has not yet issued a statement of the case (SOC) addressing either issue.  See Manlincon v. West, 12 Vet. App. 238 (1999). 
Accordingly, the appeal regarding these issues is remanded for the issuance of a SOC.
2. Entitlement to a TDIU is remanded.
In a November 2016 brief, the Veteran’s representative contended that a TDIU claim should have been awarded effective the date the Veteran filed the underlying service connection claims.  A review of the claims file shows that in July 2016, the RO sent the Veteran an unemployability claim application.  However, it appears the documents were not sent to the Veteran’s correct address. 
The Board finds that remand is appropriate to obtain the Veteran’s employment information. 
The matters are REMANDED for the following action:
1. Issue an SOC to the Veteran and his accredited representative which addresses the issues of an initial evaluation in excess of 20 percent and earlier effective date for radiculopathy, sciatic nerve, left lower extremity, and entitlement to an earlier effective date for special monthly compensation based on housebound criteria.  The Veteran should be given the appropriate opportunity to respond to the SOC.
2. Request that the Veteran submit a TDIU claim application and provide information concerning his employment since service discharge.  Thereafter, the RO should take any necessary action to verify employment with employers. 
3. After completing all indicated development, readjudicate the claim considering all the evidence of record.  If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response.  Then, if indicated, this case should be returned to the Board for appellate disposition.
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Miller, Associate Counsel 
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