Case A26002640

J. PARKER · 2026 · Case ID: A26002640

DENIED

Summary

The veteran, who served from December 1987 to December 1991, including service in Southwest Asia, appeals the denial of service connection for erectile dysfunction and higher disability ratings for psychiatric disability, chronic sinusitis, and migraines. The appeal for an earlier effective date for GERD was dismissed as moot because the VA Regional Office (RO) granted the requested date. Service connection for erectile dysfunction was denied, as the Board found the evidence, including a VA examiner's opinion, weighed against a service connection, citing other likely causes like obesity and hypertension, and a lack of in-service complaints or relevant events. The Board also found that a study cited by the veteran did not establish a causal link between psychiatric conditions and erectile dysfunction. For the psychiatric disability, the Board upheld the 30 percent rating, finding the veteran's symptoms, while present, did not meet the criteria for a higher rating based on the holistic assessment of occupational and social impairment. For chronic sinusitis, the Board upheld the 10 percent rating, noting the veteran experienced three to six non-incapacitating episodes annually, which met the criteria for that rating but not the higher ones. For migraines, the Board denied a higher initial rating for the period of August 2023 to July 2024, finding the veteran's symptoms, despite some severity, did not meet the criteria for characteristic prostrating attacks required for a higher rating, as assessed by a June 2024 VA examination.

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

241231-503944

Full Decision Text

Citation Nr: A26002640
Decision Date: 01/12/26 Archive Date: 01/12/26

DOCKET NO. 241231-503944
DATE: January 12, 2026

ORDER

The appeal for an earlier effective date for service connection for gastroesophageal reflux disease (GERD), having been rendered moot, is dismissed.

Service connection for erectile dysfunction is denied.

For the initial rating period on appeal from August 8, 2023, a higher initial disability rating in excess of 30 percent for the service-connected psychiatric disability is denied.

For the initial rating period on appeal from August 8, 2023, a higher initial disability rating in excess of 10 percent for the service-connected chronic sinusitis is denied.

For the staged initial rating period on appeal from August 8, 2023 to July 23, 2024, a higher (compensable) initial disability rating for the service-connected migraines is denied.

FINDINGS OF FACT

1. In April 2025, while a December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) was pending, the Department of Veterans Affairs (VA) Regional Office (RO) granted an earlier effective date of August 8, 2023 for service connection for GERD, which constitutes the entire benefit sought by the Veteran.

2. The evidence shows a current diagnosis of erectile dysfunction.

3. The Veteran served in Southwest Asia, and participation in a Toxic Exposure Risk Activity (TERA) related to such service is presumed, and has presumptive in-service exposure to ethyl benzene, o-xylene, vanadium, p-xylene, ion, toluene, m-xylene, and naphthalene.

4. The TERAs did not cause the erectile dysfunction.

5. There is no other in-service relevant injury, disease, or event related to the reproductive system, to include erectile dysfunction.

6. Service connection has been established for a psychiatric disability.

7. The service-connected psychiatric disability did not cause or worsen in severity the erectile dysfunction.

8. For the initial rating period on appeal from August 8, 2023, the severity, frequency, and duration of the symptomatology from the service-connected psychiatric disability most nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; it did not more nearly approximate occupational and social impairment with reduced reliability and productivity.

9. For the initial rating period on appeal from August 8, 2023, the symptomatology and functional impairment of the service-connected sinusitis have manifested as three to six non-incapacitating episodes per year, characterized by headaches, pain, and purulent discharge or crusting.

10. For the initial rating period on appeal from August 8, 2023, the symptomatology and functional impairment of the service-connected sinusitis did not more nearly approximate three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis, characterized by headaches, pain, and purulent discharge or crusting.

11. For the staged initial rating period on appeal from August 8, 2023 to July 23, 2024, the symptomatology and functional impairment of the service-connected migraines did not more nearly approximate characteristic prostrating attacks averaging one in two months over a several month period.

CONCLUSIONS OF LAW

1. The appeal for an earlier effective date of August 8, 2023 for service connection for GERD has been rendered moot by the grant of that effective date in an April 2025 VA RO rating decision. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. For the initial rating period on appeal from August 8, 2023, the criteria for a higher initial disability rating in excess of 30 percent for the service-connected psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9410.

4. For the initial rating period on appeal from August 8, 2023, the criteria for a higher initial disability rating in excess of 10 percent for
C.F.R. §§ 3.102, 3.303, 3.310.

4. For the initial rating period on appeal from August 8, 2023, the criteria for a higher initial disability rating in excess of 10 percent for the service-connected chronic sinusitis have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6512-6513.

5. For the staged initial rating period on appeal from August 8, 2023 to July 23, 2024, the criteria for a higher (compensable) initial disability rating for the service-connected migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.124a, Diagnostic Code 8100.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran, who is the appellant, had active service from December 1987 to December 1991, which included service in Southwest Asia. The Veteran had additional Reserve service with periods of Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACUDTRA).

The instant case is on appeal to the Board of Veterans' Appeals (Board) from multiple VA RO rating decisions. The modernized review system, also known as the Appeals Modernization Act (AMA), applies to this appeal.

Pertaining to an earlier effective date for GERD, a December 2024 VA RO rating decision granted service connection for GERD and established a disability rating of 10 percent, effective September 30, 2024.

On December 31, 2024, the Veteran filed a Notice of Disagreement and a request for Higher-Level Review (HLR), appealing for an earlier effective date of August 8, 2023. This constitutes an impermissible concurrent election. Despite the impermissible concurrent election, the VA RO processed the HLR request. In April 2025, while the Notice of Disagreement was pending, the VA RO granted the requested earlier effective date of August 8, 2023.

Concerning the issue of service connection for erectile dysfunction, a July 2024 VA RO rating decision denied service connection for erectile dysfunction. After the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, in which he requested readjudication of the denial of service connection for erectile dysfunction, the VA RO continued to deny service connection for erectile dysfunction in a December 2024 VA RO rating decision. In the December 2024 Notice of Disagreement, the Veteran appealed the denial of service connection for erectile dysfunction, listing the December 2024 VA RO rating decision as the decision on appeal.

Concerning the psychiatric disability, an August 2024 VA RO rating decision granted service connection for a psychiatric disability, and assigned a 30 percent initial disability rating effective August 8, 2023. In the December 2024 Notice of Disagreement, the Veteran appealed for a higher initial disability rating.

With respect to the chronic sinusitis, a July 2024 VA RO rating decision granted service connection for chronic sinusitis and assigned a 10 percent initial disability rating, effective August 8, 2023. In the December 2024 Notice of Disagreement, the Veteran appealed for a higher initial disability rating.

Concerning migraines, a July 2024 VA RO rating decision granted service connection for migraines and established a 0 percent (noncompensable) initial disability rating, effective August 8, 2023. An August 2024 VA RO rating decision granted a 50 percent disability rating, effective July 23, 2024.

In the December 2024 Notice of Disagreement, the Veteran listed the issue of an "earlier effective date" for the 50 percent disability rating for the service-connected migraines. Although the appeal has been characterized as an earlier effective date, the appeal is not in fact an appeal for an earlier effective date; rather, the disagreement is with the earlier, lower "staged" disability rating for the initial rating period from August 8, 2023 to July 23, 2024. The Board finds that, notwithstanding the use of the language "earlier effective date" by the representative, the rating question is whether the rating assigned for the early stage of the staged disability ratings is appropriate or should be higher. See Fenderson v. West, 12 Vet. App. 119 (1999) (holding that staged ratings can be appropriate and assigned to the initial disability rating following the award of service connection).

The Board is recharacterizing the appeal pertaining to the migraines as a challenge to the initial rating period from August 8, 2023 to July 23, 2024, which matches the nature of the disagreement with the rating and is potentially more favorable to the Veteran, as it allows the Board de novo review of the migraine rating issue without any potential limitations that effective date requirements might impose, such as an all or nothing question of whether a specific percentage rating should get an earlier effective date, rather than the initial rating question of simply what is the highest rating percentage (including lesser rating percentages) that the lay and medical evidence supports.

In the December 2024 Notice of Disagreement, the Veteran elected the Direct Review docket.

The Board may only consider the evidence of record at the time of the delineated VA RO rating decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the delineated VA RO rating decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim or claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

1. The Appeal for An Earlier Effective Date of August 8, 2023, for Service Connection for GERD, Having Been Rendered Moot, is Dismissed.

As noted, a December 2024 VA RO rating decision granted service connection for GERD and assigned a disability rating of 10 percent, effective September 30, 2024.

Subsequently in December 2024, the Veteran filed a Notice of Disagreement and an HLR request, appealing for an earlier effective date of August 8, 2023, the date of submission of an Intent to File. The VA RO adjudicated the HLR request and, in April 2025, while the Notice of Disagreement was also pending, the VA RO granted the requested earlier effective date of August 8, 2023, based on the submission of the Intent to File.

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The Board only decides actual case law questions of law or fact. 38 U.S.C. § 7104. During the course of this appeal, VA RO granted the sole issue pertaining to GERD that was claimed by the Veteran, such that a Board decision would not result in any greater benefit. In other words, the Veteran appealed for an earlier effective date, and was granted that effective date by the VA RO, which is the earliest possible effective date by law.

As the issue of an earlier effective date of August 8, 2023, for the grant of service connection for GERD, was the issue appealed to the Board, and the issue was granted for the entire period requested by the Veteran, there remains no question of law or fact for the Board to decide regarding an earlier effective
38 U.S.C. § 7104. During the course of this appeal, VA RO granted the sole issue pertaining to GERD that was claimed by the Veteran, such that a Board decision would not result in any greater benefit. In other words, the Veteran appealed for an earlier effective date, and was granted that effective date by the VA RO, which is the earliest possible effective date by law.

As the issue of an earlier effective date of August 8, 2023, for the grant of service connection for GERD, was the issue appealed to the Board, and the issue was granted for the entire period requested by the Veteran, there remains no question of law or fact for the Board to decide regarding an earlier effective date. 38 U.S.C. § 7104. Accordingly, the appeal for an earlier effective date of August 8, 2023 for service connection for GERD, having been rendered moot, is dismissed.

Service Connection Legal Authority

Direct Service Connection

Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service.

Secondary Service Connection

Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) competent nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

TERAs

The evidence shows that the Veteran has presumptive TERAs due to service in Southwest Asia during the Persian Gulf War and also has exposure to various chemicals due to working as a Security Specialist. See, e.g., July 2024 Rating Decision; Department of Defense Form 2014; May 2024 Individual Longitudinal Exposure Record. The VA RO has issued a favorable finding of participation in a TERA due to service in Southwest Asia. The Board is bound by favorable findings of the VA RO in the absence of clear and convincing evidence to the contrary, which is not present here. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104.

2. Service Connection for Erectile Dysfunction is Denied.

The Veteran appeals for service connection for erectile dysfunction, contending primarily that the erectile dysfunction is caused or aggravated by the service-connected psychiatric disability (secondary service connection under 38 C.F.R. § 3.310). See December 2024 Notice of Disagreement.

The evidence shows a current diagnosis of erectile dysfunction. See June 2024 VA Examination. The current disability requirement for service connection under any theory has been met.

In-service TERAs

After a review of all the lay and medical evidence, the Board finds that the evidence persuasively weighs against a finding that the in-service TERAs caused the current erectile dysfunction. After a June 2024 VA examination, which included a review of the claims file, a medical history, and an examination of the Veteran, the VA examiner opined that it was less likely than not that the in-service TERAs caused the current erectile dysfunction. The VA examiner reasoned that, while there are several conditions associated with erectile dysfunction, there was no available medical evidence to suggest that the claimed TERAs directly caused the erectile dysfunction.

The June 2024 VA examiner opined that the severe obesity, obstructive sleep apnea, and chronic pain are likely the cause of the erectile dysfunction, as well as possible underlying, undiagnosed vascular disease, give the long-standing hypertension and obesity. The June 2024 VA examiner opined that the erectile dysfunction was not directly related to the in-service TERAs.

As the negative opinion by the June 2024 VA examiner is the only opinion of record pertaining to TERAs, the Veteran has not presented competent lay or medical evidence of a relationship between the erectile dysfunction and the TERAs, and the June 2024 VA examiner reasoned there were other more likely non-service-related causes such as hypertension and obesity, the Board finds that the persuasive weight of the evidence is against a finding of a direct relationship between the in-service TERAs and the current erectile dysfunction.

Direct Service Connection Due to Other Causes

After a review of all the lay and medical evidence of record, the Board finds that there is no other in-service relevant reproductive system injury, disease, or event related to erectile dysfunction. During service, the Veteran sought treatment for many symptoms, diseases, and injuries, to include the right knee, the right forearm, the right wrist, conjunctivitis, an upper respiratory infection, a urinary tract infection, an infected blister, hay fever, the left foot, the left ankle, the right thumb, and the right leg. Despite treatment for multiple problems, there were no complaints, symptoms, findings, diagnosis, or treatment related to the reproductive system generally or to erectile dysfunction specifically.

The Board finds that, under the specific facts of this case, which include no symptoms or findings in service, no symptoms for years after service, and medical opinion evidence of other likely non-service-related causes of erectile dysfunction, the absence of lay or medical evidence indicated in the complete contemporaneous service treatment records and elsewhere in the record is one factor in its finding that the persuasive weight of the lay and medical evidence is against the incurrence of a relevant in-service reproductive system injury, disease, or event during service. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact that would ordinarily be recorded).

In conjunction with the original claim in January 2024, the Veteran wrote that he had started to experience the claimed diseases and disabilities, to include erectile dysfunction, during service. The Veteran wrote that he did not seek treatment for all of them due to job requirements during service.

The Board acknowledges the Veteran's lay statement but finds that it is contradicted and outweighed by the fact that the Veteran did seek treatment for a range of symptoms and diseases during service. When pursuing this claim, the Veteran also did not allege any specific symptoms of erectile dysfunction that started during service, unlike the assertions in the same document as to specific migraine and sinus symptoms that started during service.

Given this evidence, the Board finds that the evidence persuasively weighs against a finding of an in-service relevant reproductive system injury, disease, or event, to include in-service complaints, symptoms, findings, diagnosis, or treatment related to erectile dysfunction. Without an in-service event, other than the TERAs discussed above that have found to not cause the erectile dysfunction, direct service connection (38 C.F.R. § 3.303(a), (d)) must be denied.

Secondary Service Connection Due to the Psychiatric Disability

As noted above, the main theory of service connection alleged by the Veteran is that of secondary service connection (38 C.F.R. § 3.310) with respect to the service-connected psychiatric disability. See December 2024 Notice of Disagreement. As there is a current disability of erectile dysfunction and a service-connected psychiatric disability, the question that remains before the Board is whether the service-connected psychiatric disability caused or worsened in severity (i.e., aggravated) the current erectile dysfunction.

After a review of the lay and medical evidence of record, the Board finds that the evidence persuasively weighs against a finding that the current erectile dysfunction was caused or aggravated by the service-connected psychiatric disability. The June 2024 VA examiner specifically opined that other claimed conditions such as
alleged by the Veteran is that of secondary service connection (38 C.F.R. § 3.310) with respect to the service-connected psychiatric disability. See December 2024 Notice of Disagreement. As there is a current disability of erectile dysfunction and a service-connected psychiatric disability, the question that remains before the Board is whether the service-connected psychiatric disability caused or worsened in severity (i.e., aggravated) the current erectile dysfunction.

After a review of the lay and medical evidence of record, the Board finds that the evidence persuasively weighs against a finding that the current erectile dysfunction was caused or aggravated by the service-connected psychiatric disability. The June 2024 VA examiner specifically opined that other claimed conditions such as sleep apnea, obesity, and chronic pain were the cause of erectile dysfunction, whereas psychiatric symptoms were not the cause of the current erectile dysfunction. The June 2024 VA examiner reviewed the claims file, obtained a medical history from the Veteran, relied on accurate factual assumptions consistent with the Board's findings of fact in this case, and performed a thorough examination.

After this individualized review and assessment, the June 2024 VA examiner opined that, although there might be associated conditions, such as the psychiatric disability, the cause was more likely the severe obstructive sleep apnea, obesity, and chronic pain. The June 2024 VA examiner also assessed that there was a potential for an underlying, undiagnosed vascular disease, given the long-standing hypertension and obesity.

In support of the claim for a secondary relationship, the Veteran submitted a June 2023 article called "Sexual Dysfunctions Among Veterans With and Without [Posttraumatic Stress Disorder]." In this Veteran's case, service connection has been established for an other specified trauma and stressor-related disorder, rather than diagnosed PTSD. While there is likely some overlap in the symptoms, the reason for not finding a full diagnosis of PTSD was the frequency of intrusive thoughts and nightmares, as discussed further below. The study at times involves other psychiatric disabilities, to include depression, anxiety disorders, and substance abuse disorders.

The June 2023 study aimed to address whether there is a relationship between PTSD and various sexual dysfunctions, to include erectile dysfunction, as well as to explore the relationship between the sexual dysfunctions, comorbidities, use of medications, and PTSD. The Board finds that the June 2023 article does not address a causal or aggravation relationship; rather, the article addresses comorbidities and correlations between the disorder. The fact that erectile dysfunction is more prevalent in Veterans with PTSD, versus those without PTSD (including those who have experienced trauma), does not tend to show that the PTSD or related psychiatric disability caused the erectile dysfunction. The June 2023 study found that the clearest relationship was between PTSD and impairments in sexual desire, sexual satisfaction, and sexual distress. There were mixed results related to sexual arousal and erectile dysfunction.

Additionally, the June 2023 study stated that use of antidepressant medication was correlated with all types of sexual dysfunction because of the impact of the medication on the various hormones (dopamine, epinephrine, and serotonin). These findings are not relevant to this Veteran's case, as the Veteran does not take an antidepressant. As such, the erectile dysfunction findings not only involved mixed results, but also are distinguishable from this Veteran's case because the study assumes a factor that this Veteran does not experience.

The Board has considered the findings of the June 2023 study but finds that they do not tend to establish a causal relationship or an aggravation relationship. Additionally, the opinion of the June 2024 VA examiner was based on a case-specific review of records, medical history, and examination of this Veteran, rather than a study that involves unknown veterans with various psychiatric diagnoses including PTSD, which this Veteran does not have.

The June 2024 VA examiner's opinion was based on an individualized assessment related to the Veteran's history, symptoms, impairments, and diagnoses. After the assessment, the June 2024 VA examiner opined that the most likely causes of current erectile dysfunction were morbid obesity, obstructive sleep apnea, and chronic pain, rather than a psychiatric disability.

For these reasons, the Board finds that, under the facts of this case, the June 2024 VA examiner's opinion against a secondary relationship is more persuasive than the June 2023 study. There are no private opinions of record that attempt to relate the findings of the June 2023 study to any specific evidence in this case. Accordingly, the evidence persuasively weighs against a finding of a secondary relationship, whether causal or aggravation (38 C.F.R. § 3.310), between the service-connected psychiatric disability and the current erectile dysfunction. The appeal for service connection for erectile
causes of current erectile dysfunction were morbid obesity, obstructive sleep apnea, and chronic pain, rather than a psychiatric disability.

Disability Ratings Legal Authority

The Veteran appeals for a higher initial disability rating in excess of 30 percent for the service-connected psychiatric disability and a higher initial disability rating in excess of 10 percent for the service-connected sinusitis. Also, as explained in the introductory section above, the Veteran appeals for a higher (compensable) initial disability rating for the service-connected migraines from August 8, 2023 to July 23, 2024. Specific contentions with respect to each disability are provided in the sections below.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. ?Separate diagnostic codes identify the various disabilities. ?38 U.S.C. § 1155;?38 C.F.R., Part 4. ?Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. ?38 C.F.R. § 4.1.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with?38 C.F.R. § 4.25. ?Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. ?38 C.F.R. § 4.14. ?It is possible for a veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown,?6?Vet. App.?259, 261-62?(1994); Lyles v. Shulkin,?29?Vet. App. 107?(2017) (holding that?38 C.F.R. § 4.14?prohibits compensating a veteran twice for the same symptoms or functional impairment).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. ?Otherwise, the lower rating will be assigned. ?38 C.F.R. § 4.7. ?Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. ?38 C.F.R. § 4.3. ?An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. ?Fenderson v. West,?12?Vet. App. 119?(1999).

3. From August 8, 2023, a Disability Rating in Excess of 30 Percent for the Psychiatric Disability is Denied.

The VA RO established a 30 percent disability rating, effective August 8, 2023, for the service-connected psychiatric disability. The Veteran has not advanced any specific contentions as to why a higher initial disability rating is warranted.

The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. ?38 U.S.C. §§ 501, 1155;?38 C.F.R. § 4.130. ?By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. ?The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. ?See Mauerhan v. Principi,?16?Vet. App.?436
5;?38 C.F.R. § 4.130. ?By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. ?The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. ?See Mauerhan v. Principi,?16?Vet. App.?436, 442?(1992).

The evidence considered in determining the level of impairment under?38 C.F.R. § 4.130?is not restricted to the symptoms provided in the diagnostic code. ?Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. ?See?38 C.F.R. § 4.126. ?If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. ?The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. ?See Mauerhan,?16 Vet. App. at 443. ?The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating?psychiatric disabilities. ?Sellers v. Principi, 372 F.3d 1318, 1326?(Fed. Cir. 2004).

In Vazquez-Claudio v. Shinseki,?713 F.3d 112, 117?(2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." ?The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." ?See?id.? It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." ?See?id.

Under Diagnostic Code 9410, a 0 percent (noncompensable) rating will be assigned when a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. ?38 C.F.R. § 4.130.

A 10 percent rating will be assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. ?Id.

A 30 percent rating will be assigned for 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), chronic sleep impairment, and mild memory loss (such as forgetting names directions, recent events). ?Id.

A 50 percent rating will be assigned for 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, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. ?Id.

A 70 percent rating will be assigned 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 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 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 inability to establish and maintain effective relationships. ?Id.

A 100 percent schedular rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions
such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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 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 inability to establish and maintain effective relationships. ?Id.

A 100 percent schedular rating contemplates 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 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. ?Id.

After a review of all the lay and medical evidence of record, the Board finds that the criteria for a higher initial disability rating in excess of 30 percent have not been met for the initial rating period on appeal from August 8, 2023. For this initial rating period, the lay and medical evidence shows that the severity, frequency, and duration of the symptoms of the service-connected psychiatric disability most nearly approximated 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), as contemplated by a 30 percent disability rating. During this initial rating period, the service-connected psychiatric disability did not more nearly approximate occupational and social impairment with reduced reliability and productivity, as contemplated by a 50 percent disability rating.

The best evidence in the claims file related to the rating for the psychiatric disability is a June 2024 VA examination. The claims file does not include treatment records related to the psychiatric disability, and the Veteran has not alleged that any exist.

At the June 2024 VA examination, the VA examiner diagnosed other specified trauma and stressor-related disorder. The examiner explained that, although the Veteran does not meet the full criteria for PTSD, it was very likely that the symptoms stemmed from the reported in-service traumatic events and continued to the present.

The June 2024 VA examiner documented the absence of mental health treatment due to a perception of stigma, including no therapy or medication. The June 2024 VA examiner opined that, although the Veteran does not have a consistent history of reporting psychiatric symptoms, the symptoms appear to relate to the trauma, and records review does not show any other stressor event besides those related to service.

The examiner assessed that there was 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). Such assessment reflects occupational and social impairment contemplated by a 30 percent disability rating.

As of the June 2024 VA examination, the Veteran lived alone and was last in a serious romantic relationship approximately four years prior, although he had dated some since that relationship. He reported that he has a daughter from a former relationship, and he has had a decent/positive relationship with her, including texting daily. The Veteran also has five close friends from high school and work acquaintances from where he now lives, although no new friends in his job location. The Veteran reported that he stays in contact with family members, and spends his leisure time golfing and watching the television.

Occupationally, the Veteran is a high school graduate who currently works full time as a border patrol agent, which is a position he has held for 16 years. The Veteran reported some dissatisfaction over the past four years because the job was becoming more political in nature. The Veteran initially worked outdoors apprehending people and on a narcotics task force. As of the June 2024 VA examination, he predominantly worked indoors processing people.

The Veteran reported that he generally has a positive performance with no write-ups and a generally amicable relationship with coworkers, although occasionally some difficulties. He reported a work history of two prior jobs after service separation and general work training related to the current job, but no other academic programs or training.

The June 2024 VA examiner indicated depressed mood, anxiety, chronic sleep impairment, and mild memory loss. In conducting the assessment of whether the Veteran met the full criteria for PTSD, the June 2024 VA examiner documented avoidance in thinking and behaviors (like or similar to disturbances of motivation and mood), negative beliefs about himself or the traumatic event (like or similar to depression), distorted cognitions about the trauma (like or similar to disturbances of motivation and mood), diminished interest (like
positive performance with no write-ups and a generally amicable relationship with coworkers, although occasionally some difficulties. He reported a work history of two prior jobs after service separation and general work training related to the current job, but no other academic programs or training.

The June 2024 VA examiner indicated depressed mood, anxiety, chronic sleep impairment, and mild memory loss. In conducting the assessment of whether the Veteran met the full criteria for PTSD, the June 2024 VA examiner documented avoidance in thinking and behaviors (like or similar to disturbances of motivation and mood), negative beliefs about himself or the traumatic event (like or similar to depression), distorted cognitions about the trauma (like or similar to disturbances of motivation and mood), diminished interest (like or similar to depression), detachment from others (like or similar to difficulty in establishing and maintaining effective work and social relationships), depressed mood, hypervigilance (like or similar to anxiety), exaggerated startle response (like or similar to anxiety), problems with concentration like mild memory loss, and anxiety. About three to four times per year, particularly at trauma anniversaries, the Veteran has intrusive memories and nightmares (like or similar to chronic sleep impairment).

The Veteran was able to do all activities of daily living and instrumental activities of daily living and had some "existential thoughts of life and death" at times, but no actual thoughts of self-harm or suicide attempts. The Veteran felt able to talk to work colleagues with similar experiences in the service. As such, this contemplation about life and death does not constitute suicidal ideation.

Behaviorally, the Veteran had a neat and clean appearance, maintained appropriate eye contact, had fluent speech with no pressure of speech or flight of ideas, had a linear and goal-directed thought process, and was cooperative. The Veteran reported a "decent" mood. There was no evidence of psychomotor agitation, insight and judgment appeared adequate, and orientation was intact.

The June 2024 VA examiner further discussed the assessment of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The June 2024 VA examiner wrote that, despite the presence of some symptoms, the Veteran shows positive resiliency, psychological stability, and psychosocial functioning, as evidenced by an ability to maintain gainful employment after service, maintain some relationship with others, complete a training for the current position, engage in social and leisure activities, and manage all instrumental activities of daily living independently.

Viewed holistically, the Board finds that the evidence supports a finding that the severity, frequency, and duration of the symptoms cause occupational and social impairment most nearly approximating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as contemplated by a 30 percent disability rating. The lay and medical evidence persuasively weighs against finding occupational and social impairment with reduced reliability and productivity, as contemplated by the next higher 50 percent disability rating.

Occupationally, as indicated by the June 2024 VA examiner in the history section and further noted by the examiner in the comments section, the Veteran has been able to maintain gainful employment since service separation. The Veteran appears to work a full-time position and has not reported to need any accommodation related to psychiatric symptomatology or occupational impairment. The Veteran has participated in work training and reports a general positive assessment of his performance.

While it is likely that the depression, anxiety, and sleep impairments cause some difficulty with the ability to work, there is not evidence of any greater psychiatric difficulty that manifested as any more severe than the "mild" impairment noted by the VA examiner-in other words, an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

Socially, although the Veteran is not in a current romantic relationship, he has maintained one previously, has a good relationship with his adult daughter, with whom he communicates daily, and reports five friends who trace back to high school. Although he does not have friends in the area where he currently lives, he reports cordial relationships with his coworkers and said that they would be people he could turn to if he needed additional support.

The Board acknowledges that at some points the Veteran reported some degree of symptoms that are like or similar to disturbances of motivation and mood and at one point reported a symptom that could be similar to difficulty in establishing and maintaining effective work and social relationships, either of which, in isolation, could be contemplated by the next higher 50 percent disability rating; however, the psychiatric disability rating is based on the holistic picture of the degrees of occupational and social impairment, to include a composite picture of the psychiatric symptoms that cause such social and occupational impairment. Throughout the initial rating period on appeal, the predominant picture was that of anxiety, depression, and chronic sleep impairment, according to the June 2024 VA examiner, with some trauma-related symptoms that also most
.

The presence of occasional symptoms in support of a higher disability rating is not sufficient, under the facts of this case, to support a finding that the holistic disability picture more nearly approximates occupational and social impairment with reduced reliability and productivity. Given that a psychiatric rating is based on the holistic picture of psychosocial functioning, the Board credits the assessment of the June 2024 VA examiner, who examined the Veteran and assessed that, despite the presence of some symptoms, the Veteran showed positive resiliency, psychological stability, and psychosocial functioning,

As the persuasive weight of the lay and medical evidence is against finding that, for the initial rating period on appeal from August 8, 2023, the severity, frequency, and duration of the symptomatology from the service-connected psychiatric disability more nearly approximated occupational and social impairment with reduced reliability and productivity, the appeal for a higher initial disability rating than 30 percent for the service-connected psychiatric disability for this initial rating period must be denied.

4. From August 8, 2023, a Disability Rating in Excess of 10 Percent for the Chronic Sinusitis is Denied.

Service connection has been established for chronic sinusitis, with a disability rating of 10 percent from August 8, 2023, under Diagnostic Code 6512-6513. In a January 2024 lay statement, the Veteran wrote that he started having nasal, sinus, and respiratory disabilities during service. The Veteran wrote about current symptoms of itchy eyes, sinus pain, nasal congestion, sinus drainage, and nasal obstruction.

Under Diagnostic Code 6512-6513, a noncompensable (0 percent) rating is warranted for sinusitis detected by X-ray only.

A 10 percent rating is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97.

A 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting.

A 50 percent (maximum) rating is warranted for chronic sinusitis following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain, and tenderness of the affected.

At a June 2024 VA examination, the VA examiner diagnosed maxillary, frontal, and sphenoid sinusitis, which was detectable by imaging. During service, the Veteran began experiencing sinus pain, itchy eyes, nasal congestion, sinus drainage, and nasal obstruction. He underwent surgery twice (once in 1997 and once in 2010), but still reports crusted eyes each morning, bothersome nasal drainage, congestion, and occasional nosebleeds. The Veteran treats the symptoms with nasal irrigation and Flonase.

Service connection has been separately established for the symptoms that are related to rhinitis, which was diagnosed at the same examination and separated by the VA examiner.

Concerning symptoms that are specific to the chronic sinusitis, the June 2024 VA examiner reviewed private treatment records that showed extensive issues and procedures from October 2023 to December 2023. The June 2024 VA examiner wrote that the Veteran had four non-incapacitating episodes of sinusitis in the past 12 months that were characterized by headaches, pain, and purulent discharge or crusting.

The June 2024 VA examiner wrote that the Veteran had not had incapacitating episodes of sinusitis requiring prolonged (four to six weeks) of antibiotics, which is also not supported by the private treatment records. The Veteran has a history of endoscopic sinus surgery. The June 2024 VA examiner also wrote that the Veteran had to switch from outdoor employment tasks to indoor employment tasks with the border patrol because of sinus-related symptoms.

After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period on appeal from August 8, 2023, the chronic sinusitis has manifested as three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting, as reflected in the lay statement, private treatment records, and June 2024 VA examination. This finding is contemplated by a 10 percent disability rating.

Per the June 2024 VA examiner, and consistent with the private treatment records, the Veteran has not had one or two incapacitating episodes per year of sinusitis requiring prolonged (four to six weeks) antibiotic treatment, but that is only one way of meeting the criteria for the 10 percent disability rating. The four non-incapacitating episodes place the Veteran within the range of a 10 percent disability rating based solely on the documented symptoms, however, regardless of whether there are incapacitating episodes.

For the rating period from August 8, 2023, the criteria for the next higher 30 percent disability rating have not been met. As noted, the Veteran has not had incapacitating episodes requiring antibiotic treatment and has not had more than six non-incapacitating episodes per year. Given these findings, the appeal for a higher initial disability rating in excess of 10 percent for the service-connected chronic sinusitis from August 8, 2023 must be denied.

5. From August 8, 2023 to July 23, 2024, a Higher (Compensable) Initial Disability Rating for the Migraines is Denied.

The Veteran is in receipt of a 0 percent (noncompensable) initial disability rating for the service-connected migraines from August 8, 2023 to July 23, 2024. The VA RO raised the disability rating to 50 percent, effective July 23, 2024. For the reasons given in the introductory section above, the Board has recharacterized the issue on appeal as to one challenging the staged initial disability rating from August 8, 2023 to July 23, 2024, rather than an "earlier effective date" for the grant of the 50 percent disability rating.

Migraines are rated pursuant to Diagnostic Code 8100. Migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. Migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Migraines with characteristic prostrating attacks averaging one in two months over the last several months warrant a 10 percent rating. Migraines with less frequent attacks warrant a 0 percent (noncompensable) rating. 38 C.F.R. § 4.124a.

The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018).

There are several terms within Diagnostic Code 8100 that are not defined in the regulation itself but have been previously analyzed and defined by the United States Court of Appeals for Veterans Claims (Court). See Johnson, 30 Vet. App. at 247. "Prostrating" means "lacking in vitality or will: powerless to rise; laid low." Id. at 252. Thus, "[b]ecause DC 8100 specifically governs migraine headaches, the phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Id. at 252.

The Court then explained that the modifier "completely," as used before "prostrating" in the 50
within Diagnostic Code 8100 that are not defined in the regulation itself but have been previously analyzed and defined by the United States Court of Appeals for Veterans Claims (Court). See Johnson, 30 Vet. App. at 247. "Prostrating" means "lacking in vitality or will: powerless to rise; laid low." Id. at 252. Thus, "[b]ecause DC 8100 specifically governs migraine headaches, the phrase 'characteristic prostrating attacks' plainly describes migraine attacks that typically produce powerlessness or a lack of vitality." Id. at 252.

The Court then explained that the modifier "completely," as used before "prostrating" in the 50 percent criteria, meant that the veteran must be rendered entirely powerless and that "productive of severe economic inadaptability" means either "producing or capable of producing severe economic inadaptability." Id. at 253; see also Pierce v. Principi, 18 Vet. App. 440 (2004) (holding the term "productive of economic inadaptability" means either producing or capable of producing severe economic inadaptability).

The Board also notes the holding of Holmes v. Wilkie, 33 Vet. App. 67 (2020) where the Court held that DC 8100 contemplates migraine headaches, which is more than just headaches. In other words, in assessing the severity, frequency, and duration of the Veteran's symptoms in applying Diagnostic Code 8100, the Board must be cognizant that Diagnostic Code 8100 meant to compensate a "migraine" disability, which is not just throbbing headache pain, but often accompanied by nausea, vomiting, and sensitivity to light or sound, and is sometimes preceded by an aura and is often followed by fatigue. Id. at 71 (citing Merriam-Webster.com Dictionary definition of "Migraine").

In a January 2024 Lay Statement, the Veteran wrote that the most severe headache pain occurs approximately four times per month and is often accompanied by sensitivity to light, sensitivity to sound, and nausea. The Veteran did not mention or describe prostrating attacks or anything that would suggest a lay understanding of their equivalent, such as having to rest in a dark room, having to be flat or laid low, being rendered powerless, or lacking vitality.

At a June 2024 VA examination, the Veteran reported that he has had headaches with light sensitivity and sound sensitivity since deployment to Southwest Asia in 1991. The VA examiner documented the reports of headaches that involve pulsating or throbbing head pain, on both sides of the head, that worsen with physical activity, that would typically last one to two days. The Veteran reported the use of over-the-counter pain medication twice per month for a few days and that he would call off work sometimes because of migraine-related headache pain.

The June 2024 VA examiner assessed that the migraines do not involve characteristic prostrating attacks of migraine/non-migraine pain, as required for the next higher 10 percent disability rating. The claims file does not provide evidence inconsistent with the opinion of the June 2024 VA examiner that there were no characteristic prostrating attacks. There are no private treatment records that document a need to rest or to "lie low" or that result in a lack of vitality, and the Veteran did not report anything analogous either in the January 2024 lay statement or to the June 2024 VA examiner. The June 2024 VA examiner is trained to ask questions that would elicit a positive response as to the occurrence of prostrating attacks. In this case, the June 2024 VA examiner conducted a thorough examination and interview, and, after both, concluded that there were no prostrating attacks.

Characteristic prostrating attacks are required for a compensable disability rating for any service-connected migraine disability. See Diagnostic Code 8100 (establishing a 10 percent disability rating based on characteristic prostrating attacks averaging one in two months over the last several months).

The Board acknowledges that the Veteran is in receipt of a 50 percent disability rating for the service-connected migraines effective July 23, 2024. This date is the day of a private Disability Benefits Questionnaire that documented a worsening of symptoms, including the reported presence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the existence of the July 2024 private examination report does not change the fact that the June 2024 VA examiner had just assessed that there were no characteristic prostrating attacks. The symptoms may have worsened over time, as reflected in the increased disability rating. The Board credits the findings of the June 2024 VA examiner, which is based on a thorough examination,
is in receipt of a 50 percent disability rating for the service-connected migraines effective July 23, 2024. This date is the day of a private Disability Benefits Questionnaire that documented a worsening of symptoms, including the reported presence of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the existence of the July 2024 private examination report does not change the fact that the June 2024 VA examiner had just assessed that there were no characteristic prostrating attacks. The symptoms may have worsened over time, as reflected in the increased disability rating. The Board credits the findings of the June 2024 VA examiner, which is based on a thorough examination, medical history, and review of lay statements. The Board is not disputing the evidence of the later private examiner but finds that the private examination does not change the otherwise adequate and supported findings of the earlier VA examiner for the staged initial rating period on appeal.

As the evidence persuasively weighs against a finding of characteristic prostrating attacks for the staged initial rating period on appeal from August 8, 2023 to July 23, 2024, a higher (compensable) initial disability rating must be denied.

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Smith, Associate Counsel

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.

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