Citation Nr: 19104212 Decision Date: 01/17/19 Archive Date: 01/16/19 DOCKET NO. 17-10 117 DATE: January 17, 2019 ORDER Entitlement to service connection for migraines is denied. Entitlement to a disability rating of 70 percent, but no higher, for an unspecified insomnia disorder is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for tension headaches, to include as secondary to service-connected unspecified insomnia disorder, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of migraines. 2. The Veteran’s service-connected unspecified insomnia disorder has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideations. CONCLUSIONS OF LAW 1. The criteria for service connection for migraines have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating of 70 percent, but no higher, for an unspecified insomnia disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, Diagnostic Code 9423. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to July 2014. On appeal is a September 2016 rating decision that, among other things, granted service connection for an unspecified insomnia disorder and assigned a 10 percent rating; denied service connection for headaches; and, denied service connection for migraines. The Veteran challenges the denial of service connection for headaches and migraines, and the 10 percent rating assigned initially for his unspecified insomnia disorder. During the pendency of the appeal, in a February 2017 rating decision, the Regional Office (RO) increased the initial rating for the unspecified insomnia disorder to 50 percent disabling. As the disability rating assigned does not represent a total grant of benefits sought on appeal, the claim for an increase remains before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for migraines The Veteran claims he has migraines as a result of his military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As there is no competent evidence of a current diagnosis of migraines, the Board concludes that the preponderance of the evidence is against granting service connection. A review of the Veteran’s post service VA treatment records reflects the Veteran had no complaints, diagnosis, or treatment specifically for migraines. In February 2017, the Veteran underwent a VA examination for headaches and migraines. The examiner diagnosed the Veteran with “tension headaches” and noted that the Veteran did not have prostrating attacks of migraine/non-migraine headache pain. Therefore, no diagnosis of migraine headaches was rendered. The Board acknowledges the Veteran’s report of migraines. However, in order to warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a Veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In this case, while the Veteran is competent as a layperson to testify to symptoms he experiences, such as headaches, he has not demonstrated that he has the necessary skills, experience, or medical knowledge to diagnose his headaches as a migraine type; this is a complex medical question. Consequently, in light of the findings of the VA examination showing that the Veteran does not have a current diagnosis of migraines, the Board concludes that the Veteran’s statements and opinions as to diagnosis and etiology are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Because the competent evidence of record does not establish that the Veteran has a current diagnosis of migraines, the claim must be denied. 2. Entitlement to a rating in excess of 50 percent for insomnia disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). The Veteran’s unspecified insomnia disorder has been rated pursuant to the criteria of Diagnostic Code 9423 under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Here, the Veteran was granted service connection for an unspecified insomnia disorder in a September 2016 rating decision, and it is currently assigned a rating of 50 percent. The Veteran appealed, claiming he is entitled to a higher rating. After review of the medical and lay evidence in this case, the Board finds that a disability rating of 70 percent is warranted. The Veteran underwent a VA examination for mental disorders in August 2016. The examiner diagnosed an unspecified insomnia disorder and unspecified depressive disorder. The examiner noted the Veteran’s symptoms included depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran denied current suicidal ideation, but his most recent ideation was six months ago. In addition, the examiner noted the Veteran described one past “near attempt” in November 2013 in which he had plans to shoot himself. The examiner opined the Veteran’s level of occupational and social impairment was 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. The Veteran underwent another VA examination for mental disorders in February 2017. The Veteran continued to carry a diagnosis of unspecified insomnia disorder and unspecified depressive disorder. The examiner noted the Veteran’s symptoms included depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran continued to endorse nightly early insomnia, such that it took one to two hours to initiate sleep. He endorsed nightly middle insomnia and early-morning awakening three to four times per week, such that he was unable to resume sleep. The sleep problems persisted despite adequate opportunity for sleep and attempts at good sleep hygiene. Sleep problems persisted independently of mood changes, and he denied history of sleep study. The examiner also noted the Veteran denied current suicidal ideation, but his most recent ideation was Labor Day weekend 2016. He denied a specific plan, but endorsed a “near attempt” to shoot himself in November 2013. He denied history of homicidal ideation. The examiner opined the Veteran’s level of occupational and social impairment was with reduced reliability and productivity. VA treatment records from the Puget-Sound VA Medical Center (VAMC) are associated with the Veteran’s claims file. A February 2017 mental health note reflects the Veteran presented with complaints of insomnia, depression, and migraines that were getting worse over the past 2 months. In particular, the treatment provider noted the Veteran had suicidal thoughts without a specific plan. A March 2017 record reflects the Veteran was seen in follow up to his depression, insomnia and anxiety. The treatment provider noted the Veteran’s mental status as follows: alert and attentive; grossly oriented; cooperative; dysthymic affect; mood foggy; normal speech and rhythm; no hallucinations; organized thought processes without impairment; no delusions; thoughts of suicide still several days a week with no plan or intent, no preparatory action; good insight; and good judgment. Upon review of the relevant medical evidence, the Board finds that the Veteran’s symptoms warrant a 70 percent rating, as they are severe and include suicide ideations. Although some treatment records appear to reflect milder psychiatric symptomatology, the majority of the treatment records are more consistent with a 70 percent disability rating, which is the only rating that includes suicide ideation. The Board further finds, however, that a rating of 100 percent is not appropriate in this case at any point during the appeal period. This is so because the record does not reflect that, at any time during the appeal period, the Veteran has exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 100 percent rating, such as gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. In summary, while the Veteran is significantly socially limited by her service-connected unspecified insomnia disorder, the evidence during the period on appeal fails to show that this impairment is total so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran’s unspecified insomnia disorder more nearly approximates the rating criteria for a 70 percent rating during the entire period on appeal. In conclusion, the Board finds that, for the relevant period on appeal, the Veteran’s unspecified insomnia disorder and major depressive disorder symptoms demonstrated occupational and social impairment with deficiencies in most areas. Therefore, a rating of 70 percent, but no higher, for unspecified insomnia disorder is warranted. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for tension headaches, to include as secondary to unspecified insomnia disorder, is remanded. The Veteran seeks service connection for headaches. He was provided a VA examination in February 2017. The examiner diagnosed “tension headaches” and opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the examiner reviewed the Veteran’s service treatment records and stated the Veteran did not have or relate a history of headaches at the separation physical exam; and, that the headaches noted in service in 2010 were related to an upper respiratory tract infection that was relieved by over the counter medications. The Board notes, however, that in addition to the time the Veteran was treated for headaches in relation to an upper respiratory tract infection, his service treatment records reflect that he was treated for headaches on multiple other occasions that were not addressed by the VA examiner. Moreover, in the Veteran’s February 2017 VA Form 9, substantive appeal, he asserted that he and his treating physician had determined that his headaches were directly related to his service-connected unspecified insomnia disorder in that being unable to sleep both caused and worsened his headaches. Accordingly, a VA medical opinion is also needed in this regard. The matters are REMANDED for the following actions: 1. Obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s tension headaches. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed tension headaches had its onset in or is otherwise related to active duty service. In rendering the above opinion, the examiner must specifically consider and discuss the Veteran’s service treatment records showing notations regarding headaches in May 2010, February 2011, March 2011, December 2011, March 2013, May 2013, and July 2013. b) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed tension headaches were caused or aggravated by his service-connected unspecified insomnia disorder. Aggravation in this context is defined as any increase in disability. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jiggetts, Associate Counsel