Citation Nr: 1503514 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 12-30 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased initial evaluation of posttraumatic stress disorder (PTSD) with major depressive disorder, rated as 70 percent disabling. 2. Entitlement to an increased initial evaluation of migraine headaches, rated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Roya Bahrami, Associate Counsel INTRODUCTION The Veteran had active service from July 1997 to July 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In a February 2014 letter, the Veteran withdrew her request for a Board hearing, and has not requested another opportunity to testify. See 38 C.F.R. § 20.704(e) (2014). FINDINGS OF FACT 1. The Veteran's PTSD with major depressive disorder is manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran's migraine headaches are manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran is unable to secure and maintain substantially gainful employment due to her PTSD and migraine headaches. CONCLUSIONS OF LAW 1. The requirements for an initial rating higher than 70 percent for PTSD are not met. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). 2. The criteria for an initial maximum 50 percent rating for migraine headaches are met. 38 U.S.C.A.§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2014). 3. The criteria for a TDIU are met. 38 U.S.C.A.§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Complete notice in this case was provided to the Veteran by a letter dated in November 2009, and she had ample opportunity to respond prior to the February 2010 rating decision on appeal. Regarding the duty to assist, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues herein decided has been obtained in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRS) have been associated with the claims file. All identified and available post-service treatment records have been obtained. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. As both the duty to notify and the duty to assist have been fulfilled, appellate review may proceed. II. Law and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation 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. After consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability (during the rating period) that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). III. Analysis PTSD The Veteran's PTSD has been rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, which contemplates 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to symptoms such as the following: 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. See id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Turning to the evidence of record, VA outpatient treatment records dated from July 2007 to April 2008 reflect that the Veteran continuously reported depression, anxiety, panic attacks, impaired sleep, low energy, alcohol abuse, anger, difficulty concentrating, and problems with relationships. In November 2007, she reported recently being fired due to her supervisor's personal feelings toward her. She also reported taking graduate school courses online. She consistently denied suicidal and homicidal ideation, but at times acknowledged wishing she were not here. She appeared clean and casually dressed, cooperative, alert, attentive, and oriented. She exhibited a restricted range of affect, normal speech, and logical and goal-directed thought processes. She did not exhibit hallucinations or delusions. Her GAF scores ranged from 62 to 65. The report of a December 2009 VA examination reflects that the Veteran reported sleep impairment, difficulty concentrating, hypervigilance, social avoidance, and markedly diminished interest or participation in significant activities. She had been employed for less than one year. She appeared clean, neatly groomed, cooperative, friendly, and lethargic. Her speech was clear, her mood was depressed, and her affect was normal. She was oriented and her thought process was unremarkable. She was easily distracted. She did not exhibit inappropriate behavior, homicidal or suicidal thoughts. Her recent memory appeared mildly impaired; her immediate and remote memory appeared normal. Her GAF score was 60. The report of a May 2012 VA examination reflects that the Veteran reported symptoms of anxiety and depression. She said she maintained contact with her mother and friend, who helped care for her. She was employed but frequently absent. She denied any history of psychiatric hospitalization. She was oriented and appropriately dressed and groomed. Her thought processes appeared logical and goal-directed. She exhibited mild memory loss. She exhibited no hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others. The examiner diagnosed PTSD, major depressive disorder, and alcohol abuse, and assigned a GAF score of 51. The examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. During the March 2013 RO hearing, the Veteran testified that she had no social life. She was employed but had taken the prior 2 weeks off for sick leave. She stated that getting to work (via train or bus) was difficult due to her being uncomfortable in crowds. She had 7 to 8 jobs since leaving the military. She reported that her panic attacks continued. She stayed in contact with her mother, but was estranged from the rest of her family. Based on the foregoing, the criteria for the maximum 100 percent evaluation for PTSD with major depressive disorder are not met. This is because the clinical findings do not demonstrate that symptoms associated with service-connected PTSD result in total occupational and social impairment. Notably, the Veteran is shown to be employed and maintains a relationship with her mother and a friend. Further, though the Veteran has reported having suicidal thoughts, the evidence does not show that the Veteran's PTSD and major depressive disorder has demonstrated 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 ability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411. The Board has also considered the GAF scores assigned by various examiners, which range between 51 and 65. GAF scores between 51 and 60 are consistent with "moderate symptoms" (e.g., flat effect and circumstantial speech, occasional panic attacks) or "moderate difficulty with social, occupational or school functioning" (e.g., few friends, conflicts with peers and co-workers). GAF scores between 61 and 70 are consistent with "mild symptoms" (e.g., depressed mood and mild insomnia). See DSM-IV. While many of the symptoms cited in the DSM-IV essentially mirror the symptoms cited under the schedular criteria for a 50 percent rating; they arguably approximate the criteria for the currently-assigned 70 percent rating. However, they in no way approach the criteria for a 100 percent rating. The Board notes at this point that the GAF score records the clinician's judgment of the individual's overall level of functioning, and while the GAF score is not the sole basis for assigning a disability rating, it provides a clinical indicator of the patient's functional ability. The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In this case, the GAF scores and the overall symptoms described during examination are consistent with a moderate, or at most a moderately severe, level of disability; they are not consistent with a total level of disability. In reaching this decision, the Board has considered the Veteran's lay statements. The Veteran is competent to report her psychiatric symptoms, including depression, anxiety, anger, irritability, difficulty sleeping and concentrating, and suicidal ideation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds her statements to be credible and consistent with the evaluation assigned. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. Finally, the record in this case does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant the referral for an extraschedular rating. Rather, the Veteran's symptoms-including suicidal thoughts, panic attacks, depression, anxiety, isolation, panic attacks, impaired sleep, anger, and irritability-are all contemplated by DC 9411. Since application of the regular schedular standards is not rendered impracticable in this case, the Board is not required to refer this matter for consideration of the assignment of an extraschedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Migraine Headaches The Veteran's migraine headaches have been rated as 30 percent disabling under DC 8100, which contemplates migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. A maximum 50 percent rating is warranted for migraine headaches with very frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. VA treatment records reflect ongoing treatment for headaches. In July 2007, the Veteran reported right-sided headaches and migraines 3 to 4 times per week. She had not found any medication that provided relief. Rather, when migraines occurred, all she could do was lie down; migraines would not go away until she fell asleep. In an April 2012 statement, the Veteran reported that she suffered from migraine headaches on an almost daily basis. She stated that she could "hardly stand any type of light," was "sick and want[ed] to throw up because of the immense pain." Medication did not help; she was given Topiramate after her migraines had become more frequent and severe. She stated that, as her migraines caused her pain and affected her vision, it was often difficult for her to drive to work, to get dressed, or to work. On May 2012 VA examination, the Veteran reported sharp/throbbing headaches of moderate to severe intensity with an average duration of 3 to 4 hours, 3 times per week. She also experienced prostrating headaches 3 times per month. Her headaches were associated with dizziness, nausea, blurred vision, photophobia and phonophobia. She treated her headaches with Topiramate, Ibuprofen, and Excedrin Migraine. The examiner found that the Veteran did not have very frequent prostrating and prolonged attacks of migraine headache pain. A January 2013 Disability Benefits Questionnaire (DBQ) indicates that the Veteran experienced pulsating or throbbing head pain, pain on both sides of the head, nausea, vomiting, sensitivity to light, and changes of vision. Her head pain lasted for less than a day. The Veteran had prostrating attacks of headache pain more frequently than once per month. Resolving any reasonable doubt in the Veteran's favor, the Board finds that throughout the appeal, the Veteran's migraines have more closely approximated very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In light of the foregoing, the Board finds that a 50 percent (maximum) schedular rating is warranted. The Board has considered whether referral of this matter for consideration of an extraschedular rating is indicated. Thun, 22 Vet. App. at 111. There is no objective evidence, or allegation, that schedular criteria are inadequate for rating the Veteran's service-connected migraine headaches. Comparing her migraine disability level to the applicable criteria, the Board finds that the degree of disability shown is encompassed by the rating schedule. This disability does not present an exceptional disability picture: the migraine symptomatology (i.e., frequent prostrating and prolonged attacks productive of severe economic inadaptability) is contemplated by the rating schedule. For these reasons, referral for extraschedular consideration is not warranted. TDIU Finally, the Board has also considered whether a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is warranted at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (noting that TDIU is part and parcel of a claim for increase). In order for a finding of TDIU to be made, the Veteran must be unable to secure and maintain substantially gainful employment as a result of his service-connected disability, without regard to age or nonservice-connected disabilities. See 38 C.F.R. § 4.16(a) (2014). In this case, the Veteran meets the schedular criteria for a TDIU. Moreover, the evidence of record shows that her PTSD with major depressive disorder and migraine headaches preclude her from maintaining substantially gainful employment. The Veteran reported to the October 2012 PTSD examiner that she was fired from her administrative assistant position in 2009 due to absenteeism (attributable to both headaches and PTSD, per her records) and conflict with a supervisor. Although employed at the time of the 2012 examination, the Veteran reported missing work two to three times per week due to symptoms associated with her PTSD. The examiner endorsed the Veteran's difficulty in adapting to stressful circumstances, including work or a worklike setting, as well as "frequent absences due to depressive symptoms." Moreover, the May 2012 headache examiner found that the Veteran's severe headaches impacted her ability to work, as she was unable to work while having a severe headache, which, as described above occur multiple times per month. Considering the cumulative impact of both the headache disability and her PTSD on her occupational functioning as outlined above, the Board finds that the criteria for a TDIU are met. ORDER A rating in excess of 70 percent for PTSD with major depressive disorder is denied. A 50 percent rating, but no higher, for the Veteran's migraines is granted. A TDIU is granted. ____________________________________________ SONNET BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs