Citation Nr: A22009835 Decision Date: 05/26/22 Archive Date: 05/26/22 DOCKET NO. 200701-95473 DATE: May 26, 2022 ORDER Service connection for migraine including migraine variants as secondary to service-connected tinnitus is granted. Entitlement to an increased rating of 100 percent for unspecified depressive disorder and unspecified anxiety disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's migraines are proximately due to service-connected tinnitus. 2. The severity, frequency, and duration of the Veteran's unspecified depressive disorder and unspecified anxiety disorder symptoms most closely approximate total occupational and social impairment. 3. The Veteran has been divorced for many years, had limited contact with his adult daughter, led an isolated life, and had been unable to work since 2017. 4. The Veteran exhibits depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impaired judgement; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittently inability to perform activities of daily living, including maintenance of minimal personal hygiene. 5. The Veteran's service-connected PTSD renders him unable to obtain and maintain substantially gainful employment in his prior occupation in information technology. CONCLUSIONS OF LAW 1. The criteria are met for service connection for migraines as secondary to the service-connected PTSD. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a maximum 100 percent rating for unspecified depressive disorder and unspecified anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9435. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1983 to November 1991. The rating decisions on appeal were issued in January 2020 and June 2020. The January 2020 rating decision denied an increased rating in excess of 70 percent for the Veteran's unspecified depressive disorder and unspecified anxiety disorder. The rating decision issued in June 2020 continued to deny service connection for migraines including migraine variants as secondary to tinnitus. In the July 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), the Veteran elected the Direct Review docket. The Veteran appealed the denials of an increased rating for his psychiatric disability in the January 2020 rating decision and service connection for migraines in the June 2020 rating decision. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal. 38 C.F.R. § 20.301. The record indicates the Veteran has been unemployable due to his service connected psychiatric disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the issue of a TDIU is on appeal before the Board. 1. Service connection for migraine including migraine variants as secondary to tinnitus The Veteran contends that his service-connected PTSD caused him to develop migraines. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The AOJ made a favorable finding that the Veteran has established a current disability. A June 2020 VA examiner diagnosed migraine headaches. The Board acknowledges that the June 2020 VA examiner provided a negative medical opinion against the possibility that the Veteran's migraine headaches are due to or the result of service-connected tinnitus. However, the Board finds the opinion was inadequate, for not supporting its conclusions with reference to clear medical principles or medical literature. Rather, the medical basis of the opinion was difficult to discern and ultimately unclear. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiner's opinion was also inadequate in that it did not consider the possibility that his migraines were aggravated by his service-connected tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 295; El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (finding medical opinion relating to secondary service connection claim inadequate because it addressed causation but not aggravation). However, there is also positive medical evidence in support of the claim. Initially, the Veteran submitted medical literature on a relationship between tinnitus and headaches, which is further evidence in support of the claim, albeit limited in probative value due to its generalized principles, without comment on the facts of this case. Further, a May 2020 letter by a private treating physician, Dr. K.B., found that it is at least as likely as not that his migraine headaches are associated with his service-connected tinnitus. Dr. K.B. expressly relied upon his familiarity with the Veteran's medical history and review of medical literature, noting that he found several articles in the last decade that showed an association between migraine headaches and tinnitus. Thus, the Board finds the VA treating physician's opinion is highly probative evidence in support of the claim. See Nieves-Rodriguez, 22 Vet. App. at 295 ("It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). In addition, there is competent and credible lay evidence, including the Veteran's and daughter's credible lay statements, to support this contention. The Board finds the evidence is at least in approximate balance. Resolving the benefit of the doubt in favor of the Veteran, the appeal for service connection for migraine headaches, as secondary to the service-connected tinnitus, is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to an increased rating in excess of 70 percent for unspecified depressive disorder and unspecified anxiety disorder The Veteran's unspecified depressive disorder and unspecified anxiety disorder is currently assigned a 70 percent rating under 38 C.F.R. § 4.130, DC 9435, for unspecified depressive disorder. The Veteran contends in his July 2020 NOD that he is entitled to the maximum 100 percent disability evaluation for his mental health condition. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the November 2019 claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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 or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. At an October 2019 VA PTSD exam, the Veteran reported he lived alone, had been divorced since 1995 (or 24 years), with one adult daughter who he saw once weekly, spent most of his days "laying around and falling asleep", had no hobbies, usually declined invitations from his ex-military friends, and also indicated he had financial troubles that would lead to losing his home. He reported not having worked since 2017, when he was working in IT for a private company, until he had an angry outburst and confrontation with a co-worker. The Veteran also reported "a couple of blowups," involving angry behavior and confrontations while driving and at a convenience store. The examiner found symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. The examiner found 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 (commensurate with a 50 percent rating); however, the basis of such finding was not clear, and in fact, appears inconsistent with the Veteran's significant reported impairments of social and familial relationships and occupational impairment. Thus, the Board accords limited probative value to the October 2019 VA examiner's findings against the claim. Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. At the December 2019 VA mental disorders exam, the examiner commented that the Veteran's psychosocial functioning had worsened since the October 2019 exam, as his contact with his adult daughter had decreased to only 1-2 times per month, but sometimes discourages her from visiting, and that he used to play golf and attend church sometimes, but "not now." The Veteran reported that he continued to lead an isolated life. The December 2019 VA examiner noted symptoms of depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and suicidal ideation. On behavioral observation, the December 2019 examiner observed the Veteran engaged the process effectively, but in a dysphoric mood. The December 2019 VA examiner found the overall severity of the Veteran's PTSD manifested occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which approximates a 70 percent rating. The Board accorded an August 2019 PTSD Disability Benefits Questionnaire (DBQ) limited probative value, as it only noted symptoms and impairments attributable to a non-service-connected PTSD disability. However, highly probative evidence in support of the claim was submitted by the Veteran. A November 2019 Mental Disorders DBQ by private psychologist, Dr. S.S., found symptoms of depressed mood; anxiety, suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittently inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. S.S. stated that the Veteran's mood issues and somatic symptoms are significant barriers regarding his functioning in multiple areas of life. Importantly, Dr. S.S. opined that the Veteran's overall mental health impairment manifested in total occupational and social impairment, which approximates the criteria of a 100 percent rating. Thus, there is sufficient medical evidence to find the Veteran's psychiatric disability has manifested total occupational and social impairment. In addition, there is competent and credible lay evidence, including the Veteran's credible lay statements, to support this contention. The evidence for and against the Veteran's claim for an increased rating is at least evenly balanced. Resolving any reasonable doubt in favor of the Veteran, the Board concludes that the Veteran's symptoms most closely approximate the symptoms associated with a 100 percent rating and cause the level of impairment required for a disability rating of 100 percent. 3. Entitlement to TDIU is granted The Veteran reported he has been unemployed in his prior occupation in information technology since 2017, when he was fired after an angry outburst with a coworker. See December 2019 VA examination. TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As a preliminary matter, the Veteran meets the schedular criteria for consideration for TDIU, and he has been unemployed during the pendency of the appeal. The evidence demonstrates the Veteran's severe occupational impairment from his service-connected psychiatric disability renders him unable to secure or follow a substantially gainful occupation. In November 2019, Dr. S.S. opined that the Veteran's mood issues and somatic symptoms are significant barriers regarding his functioning in multiple areas of life. The December 2019 VA examiner notably found symptoms that would result in severe occupational impairment, including near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation. Such objective medical evidence together with competent and credible lay statements provide substantially probative evidence that the Veteran's service-connected psychiatric disability interferes with his ability to work. The Veteran's service-connected psychiatric disability is of sufficient severity to preclude him from obtaining or retaining gainful employment, particularly in his former occupation in IT. 38 C.F.R. § 4.16 (a). The evidence for and against TDIU is at least evenly balanced. Resolving any reasonable doubt in favor of the Veteran, the Board finds TDIU due to his service-connected unspecified depressive disorder and unspecified anxiety disorder is warranted. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.