Citation Nr: 0813989 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-12 539 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES 1. Entitlement to an increase in a 30 percent rating for asthma. 2. Entitlement to an initial rating higher than 10 percent for dysthymia. 3. Entitlement to an initial higher (compensable) rating for headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from February 1995 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 RO rating decision that granted service connection and a 10 percent rating for dysthymia, effective September 5, 2002, and granted service connection and a noncompensable rating for headaches, effective September 5, 2002. By this decision, the RO also denied an increase in a 30 percent rating for asthma. The Board notes that a June 2006 RO decision denied service connection for sleep apnea. The veteran filed a notice of disagreement in June 2006 and a statement of the case was issued in December 2006. The record does not reflect that a timely substantive appeal has been submitted as to that issue. Thus, the Board does not have jurisdiction over that claim. 38 C.F.R. §§ 20.200, 20.202, 20.302. The issue of entitlement to an increase in a 30 percent rating for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since the effective date of service connection on September 5, 2002, the veteran's dysthymia has been manifested by 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 various symptoms. 2. The veteran's headaches have not been productive of prostrating attacks averaging one in 2 months over the last several months. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no more, for dysthymia have been met continuously since service connection for that disorder became effective on September 5, 2002. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2007). 2. The criteria for a compensable rating for headaches have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim, including what subset of the necessary information or evidence, if any, the claimant is to provide and what subset of the necessary information or evidence the VA will attempt to obtain. Also, a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. Recently, the United States Court of Appeals for Veterans Claims (Court) held in Vazquez-Flores v. Peak, No. 05-0355 (U.S. Vet. App. January 30, 2008), that for a claim for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, under Vazquez, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case, in an October 2002 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claims for service connection for dysthymia and for headaches, and in June 2003 and December 2003 letters the RO provided notice regarding what information and evidence is needed to substantiate the claims for higher ratings for dysthymia and headaches, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence in his possession that pertains to the claims. A March 2006 letter also advised the veteran of how disability evaluations and effective dates are assigned, and the type evidence which impacts those determinations. The case was last readjudicated in April 2007. Additionally, the Board notes that this appeal arises from the veteran's disagreement with the initial rating following the grant of service connection for dysthymia and headaches. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet.App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file include: the veteran's service medical records; post-service private and VA treatment records; VA examination reports; lay statements; and articles submitted by the veteran. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes: his contentions; service medical records; post-service private and VA treatment records; VA examination reports; lay statements; and articles submitted by the veteran. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. The Board interprets reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. The Board will evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). A recent decision of the Court has held that in determining the present level of 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 other words, where the evidence contains 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 would be necessary. In Fenderson v. West, 12 Vet.App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, from the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. I. Dysthymia A 10 percent rating is warranted for a dysthymic disorder where there is 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. A 30 percent rating requires 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 conversion normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9433. In evaluating the evidence, the Board has noted various Global Assessment of Functioning (GAF) scores which clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a GAF score of 31 to 40 is meant to reflect an examiner's assessment of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g. depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). A GAF score of 51 to 60 indicates the examiner's assessment of moderate symptoms (e.g., a flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 61 to 70 indicates the examiner's assessment of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well and having some meaningful interpersonal relationships. An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126. The RO has assigned a 10 percent rating for dysthymia, effective September 5, 2002 (the effective date of service connection). Private and VA treatment records dated from November 2001 to December 2002 show that the veteran was treated for several disorders. A January 2003 VA psychiatric examination report noted that the veteran was married and that he reported that he had been treated for grief for a short period of time secondary to his brother being killed four years earlier. He stated that he had never had a psychiatric hospital admission and he denied that he had any legal problems. The veteran indicated that he was financially responsible for six children and that three lived in his household with him. He stated that he was a good painter in the military and that he had made an enormous amount of money on the side by painting, but that he could not do it anymore secondary to asthma. It was noted that the veteran had changed career choices because of his significant health related difficulties. The veteran reported that he had difficulty sleeping and that he sometimes felt low about his health. He stated that he was more irritable than he used to be. He noted that his energy and concentration were sometimes okay and were sometimes not that good. It was noted that the veteran denied suicidal or homicidal ideations. The veteran reported that he had some difficulties with his memory and he indicated that he suffered a head injury when he was in the military. He stated that he did not do much physically and that he had been told that he was not as patient with his wife and children as he used to be. The examiner reported that the veteran was alert and oriented times four and that he had good eye contact. The examiner stated that the veteran's mood and affect with only slightly constricted and that his thought process was coherent. It was noted that the veteran's thought content was negative for suicidal or homicidal ideation. The examiner indicated that the veteran's cognitive examination was intact and that his insight and judgment were adequate. The assessment was dysthymia secondary to asthma. A GAF score of 65 was assigned. Private and VA treatment records dated from January 2003 to August 2005 show treatment for disorders including a dysthymic disorder. A March 2003 VA treatment entry related a diagnosis of a dysthymic disorder. A GAF score of 50 was assigned at that time. A September 2003 entry indicated a diagnosis of a dysthymic disorder and a GAF score of 55. A September 2005 VA psychiatric examination report noted that the veteran's appearance was notable for a lack of hair and for serious allergies and sinus problems which produced a torrent of mucoid production. He reported that he had four step-brothers and that two of the brothers were twins and were in the Gulf War. He stated that they were doing okay for now. He indicated that he had one biological sister and one step-sister. The veteran reported that he had been married since 1998 and that his wife was a student at a technical college pursuing a business administration degree. He stated that he had two step-sons and four biological children. It was noted that the veteran graduated high school and that he would be obtaining a Bachelor of Science degree from a university in December 2005. The veteran stated that he had also been taking classes at a college online. He indicated that he had worked with his father since the age of twelve in various areas such as construction. The veteran reported that during service he began experiencing physical conditions which eventually led to employment difficulties. He stated that he always took small jobs to keep his family afloat, but that his physical conditions would not let him complete many jobs. He indicated that he was presently working with a state security commission and that he began his occupation two months ago. He stated that he enjoyed his occupation because he was able to help people, but that there were some problems. The veteran indicated that his asthma was very apparent and that he was actually sent home for two days when he had a major attack. The veteran indicated that his asthma was intrusive both on his physical stamina and with fellow workers. He stated that his breathing could become erratic requiring inhalers and nebulizers. It was noted that the veteran described an exogenous form of depression that quite clearly stemmed from the work inhibition caused by his physical limitations. The veteran indicated that he was fortunate in that he received a subsistence allowance from the VA to help with finances, but that he possibly or probably would have to face unemployment in the near future if his asthma worsened. He stated that the asthma and his headaches were physical problems that bothered him and that generally brought him down. The veteran reported that he had not seen anything to make him hopeful that his depression might be lifting. He stated that his activity had gone down which worried him and that he was more active in the past. He indicated that when he got out of the military, he had a hard time holding jobs mainly because of his sinuses, headaches, and asthma. He reported that he had an inability to work around people who were naturally uncomfortable and that his job performance would suffer. He stated that he was paid hourly because his employer did not want to put him on full-time employment with benefits. The veteran indicated that if he took off from work because of an asthma attack, he did not get paid. He related that he was depressed because of constant illness, the pressure of not working, and the needs of his family. He stated that his depression seemed to get worse when he thought about his bills being so far behind. The veteran indicated that he was down essentially daily, but not to the point of taking his life. He stated that he had too much responsibility for that and that he was not suicidal. He indicated that he did not have much happiness in his life. It was noted that there was no remission. The examiner noted the veteran was employed and had a temporary position. It was reported that the veteran had time lost from work due to asthma and sinus attacks. The examiner reported that the veteran was well-groomed and appropriately, if casually, dressed. The examiner stated that the veteran was cooperative and that he made good eye contact. It was noted that the veteran's kinetics were normal except for the necessary movements to tend to his coughing, sneezing, and blowing his nose. The examiner indicated that the veteran's speech was of a normal rate, a slightly lower volume, and a normal prosody. It was reported that the veteran's speech was relatively articulate and soft. The examiner stated that the veteran's mood was moderately somber and that such was possibly a reaction to the discomfort he was obviously feeling. The examiner indicated that the veteran's affect was concurrent with mood and topic and of a full range. It was noted that no abnormal perceptions were found. The examiner reported that the veteran's thought perceptions indicated good cognition and that they were goal-directed and showed intact sensorium. The examiner stated that the veteran's thought contact was generally appropriate and that there were no homicidal, suicidal, or delusional aspects. The examiner indicated that the veteran was alert and oriented to person, place, situation, and purpose. It was noted that the veteran's memory was intact both with respect to immediate and delayed recall. The examiner stated that the veteran's judgment showed no impairment and that his insight appeared to be true. It was noted that the veteran denied any obsessive or ritualistic behavior and that he denied any impaired impulse control. The examiner reported that the veteran stated that his sleeping was impaired with the wearing of a CPAP. As to daily activities, the veteran reported that he got up, got the kids off to school, went to work, came home, helped out, and fell into bed tired. The examiner indicated that the veteran was credible when he stated that his dysthymic disorder had worsened in conjunction with the pressures of his job, six children, and a wife at school. As to diagnoses, the examiner reported that the veteran had a dysthymic disorder with a chronically depressed mood that appeared for more days than not and had done so for at least two years. A mood disorder due to general medical condition was also diagnosed. The examiner stated that the essential feature of that diagnosis was a prominent persistent disturbance in mood that was judged to be due to the direct physiological effects of a general medical condition. It was noted that the conditions in the present case were severe asthma and sinusitis. The examiner stated that the mood disturbance most noted was a depressed mood. The examiner indicated that the severity of the veteran's psychological stressor scale was moderate to occasionally severe, especially in the work place. It was noted that the veteran's disability was essentially alienating. As to the veteran's social and occupational functioning assessment scale, the examiner indicated that the veteran had moderate to occasional serious impairment in important spheres, mainly occupational and somewhat socially, due to the effects of his chronic asthma and sinus problems. A GAF score of 62 was assigned. It was noted that such indicated moderate to moderately serious difficulties mainly in the occupational area. VA treatment records dated from October 2005 to October 2006 show continuing treatment for multiple disorders. The most recent January 2007 VA psychiatric examination report noted that the veteran reported that he was not depressed all the time. He stated that his concentration was really good at work, but stated that when he was at home he had periods of loss of focus and concentration and would find himself engaging in some self-denigrating thoughts. He noted that he would get about six to eight hours of sleep, but that he used a CPAP machine. The veteran indicated that his sleep was affected both by his asthma and his sleep apnea and that he felt tired in the morning. It was noted that the veteran did not report significant feelings of hopelessness, but that he did report a decreased energy level throughout the day. It was also reported that the veteran did demonstrate by his verbalizations some mild lowered self-esteem, mostly in relation to his won self-assessments. The veteran reported that he sometimes felt that he was not providing adequately for his family and that he felt he had been limited because of his health problems. It was noted that the veteran denied any suicidal ideation and that he reported that he not had any episodes of crying recently. The veteran did complain of having a short temper, manifested mostly by irritability. The veteran indicated that his parents were both alive and that he got along really well with his mother. He noted that he had some issues with his father. He reported that he had one blood sibling and five step siblings, but that he was not close to them. The veteran indicated that he had been married to his wife for eight and that his marriage was great. He related that he had four biological children and two stepchildren. It was noted that four of the children were still living at his home. The veteran reported that he had some irritability directed at his children at times, but that, overall, they had a positive relationship. The veteran indicated that he had changed his job and that he presently worked at a VA medical center. He indicated that he had been at such occupation since October 2005 and that his work involved medical support. He stated that he did very well and that he hoped to be promoted. The veteran indicated that his mental health symptomatology was not impairing his work performance. As to activities of daily living, it was noted that the veteran managed his own personal hygiene and grooming. The veteran stated that the meal preparation and chores and errands were shared with his wife. He noted that he liked to listen to music for leisure or relaxation. He indicated that he enjoyed playing with his children and that he participated in social activities with his spouse. It as noted that, overall, inappropriate behavior was not a significant problem for the veteran. The examiner indicated that the veteran's appearance was neat, clean, and casual. The examiner stated that the veteran's immediate, recent, and remote memories were satisfactory and that he was oriented in all spheres. The examiner reported that the veteran's thought process production was spontaneous and satisfactory and that his continuity of thought was relevant and goal-directed. It was noted that he had no suicidal or homicidal ideation and that there were no delusions, ideas of reference, or feelings of unreality. The examiner indicated that the veteran's abstract ability was good and that his concentration was satisfactory. The examiner stated that the veteran's mood was euthymic and his range of affect was broad. It was noted that the veteran stated that he was not depressed today. The examiner indicated that the veteran was alert, responsive and cooperative. The examiner related that the veteran's judgment and insight were good. The diagnosis was dysthymic disorder (stable with treatment). A GAF score of 70 was assigned. The examiner commented that the symptoms relating to dysthymia were related to problems with concentration, some difficulty with sleep, some decreased energy level and a mild to low level of self- esteem. The examiner remarked that those symptoms in their totality appeared to be in the mild range. The examiner stated that in her opinion, the mild range of symptomatology was defined in DSM-IV as a GAF score between 61 and 70. The medical evidence discussed above shows that the veteran is currently is employed, full-time, at a VA medical center and that he was worked at such occupation since October 2005. The veteran has been married since to his wife for eight years and reports that his marriage was great. He has four biological children and two stepchildren and stated that although he had some irritability directed at his children, they had a positive relationship overall. The most recent January 2007 VA psychiatric examination report indicated a GAF score of 70, suggesting mild symptoms. The examiner stated that the symptoms relating to veteran's dysthymia were related to problems with concentration, some difficulty with sleep, some decreased energy level and a mild to low level of self-esteem. The examiner remarked that those symptoms in their totality appeared to be in the mild range. A prior September 2005 VA psychiatric examination report indicated a GAF score of 62, suggesting mild symptoms. However, the examiner stated that the veteran had moderate to occasional serious impairment in important spheres, mainly occupational and somewhat socially, due to the effects of his chronic asthma and sinus problems. The examiner indicated that the veteran had moderate to moderately serious difficulties mainly in the occupational area. The examiner also noted that the veteran was credible when he stated that his dysthymic disorder had worsened. Additionally, earlier VA treatment records showed GAF scores that were slightly worse. For example, a March 2003 VA treatment entry related a GAF score of 50, suggesting serious symptoms. A September 2005 entry related a GAF score of 55, suggesting moderate symptoms. A prior January 2003 VA psychiatric examination report indicated a GAF score of 62, suggesting mild symptoms. Viewing all the evidence, the Board finds that, continuously since the effective date of service connection on September 5, 2002, there is a reasonable basis for finding that the veteran's dysthymia is productive of 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, mild memory loss (such as forgetting names, directions, recent events), supporting a higher rating of 30 percent. The most recent January 2007 VA psychiatric examination indicated that the veteran had some difficulty with sleep, problems with concentration, and a decreased energy level due to his dsythymia. The September 2005 VA psychiatric examination report noted that the veteran had a chronically depressed mood and referred to moderate problems with occupational impairment. The Board cannot conclude based on the psychiatric symptomatology that his dysthymia alone is productive of occupational and social impairment with reduced reliability and productivity due to various symptoms, as required for a 50 percent schedular rating. For example, the veteran has not been shown to have such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; and impaired abstract thinking; which are indicative of such a rating. No medical evidence would support such a finding. All the medical evidence cited above would only provide negative evidence against the claim for a rating above 30 percent. As this is an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson v. West, 12 Vet.App. 119 (1999). However, staged ratings are not indicated in the present case, as the Board finds the veteran's dysthymia has continuously been 30 percent disabling since September 5, 2002, when service connection became effective. Thus, a higher rating to 30 percent, continuously since September 5, 2002, for dysthymia is granted. The Board has considered the benefit-of-the-doubt rule in making the current decision. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II Headaches The RO has assigned a noncompensable (0 percent) rating for headaches, effective September 5, 2002 (the effective date of service connection). The RO has rated the veteran's headaches under Diagnostic Code 8100. Under DC 8100, a noncompensable evaluation is assigned for migraines with less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Private and VA treatment records dated from November 2001 to December 2002 show treatment for disorders including headaches. A December 2002 VA general medical examination report noted that the veteran reported that he had been noticing symptoms of headaches, memory problems, and depression for the past three to three and a half years. He stated that he noticed a pounding headache in the area of the temples and frontal area everyday and that he would take Tylenol, like candy, to get rid of the headaches. The veteran denied any migraine headaches. It was noted that he had no history of any visual problems, nausea, of vomiting associated with the headaches. The examiner reported that the veteran's neurological examination was essentially normal without any evidence of focal neurological deficits. The diagnoses included history of headaches, memory problems, sleep problems, financial problems, and depression. The examiner commented that the veteran's headaches, memory problems, and sleep problems were all secondary to his depression and not due to a head injury. Private and VA treatment records dated from January 2003 to August 2005 show treatment for multiple disorders including headaches. A September 2005 VA neurological examination report noted that the veteran reported that he had daily headaches. He indicated that the headaches were normal bifrontal and maxillary. It was noted that the veteran did not get tooth pain and that he denied any nausea, vomiting, or visual scatoma. The veteran reported that he slept normally and that he took Tylenol Sinus and that such helped the problem. It was reported that the veteran had a history of chronic sinusitis. He stated that he had never been on antibiotic treatment for his headaches. The examiner noted that the veteran had a recent computed axial tomogram scan that showed a soft tissue density at the left maxillary antrum, representing a retention cyst. The examiner indicated that there was also polypoid mucosal thickening of the right maxillary antrum, which was mild in degree, with no other evidence of sinusitis. The examiner reported that the veteran's cranial nerves II through XII were intact and that his ears showed no tympanic membrane perforation. The examiner indicated that the veteran's eyes were injected and that he had no frontal or maxillary sinus tenderness. The diagnosis was headaches. The examiner commented that he believed that the veteran's headaches were multifactorial in nature. The examiner stated that it was more likely than not that the veteran had some component of tension headaches. The examiner stated that the veteran's retention cyst on his computed axial tomogram scan might be also contributing to his headaches. VA treatment records dated from October 2005 to October 2006 refer to continuing treatment for multiple disorders. The most recent January 2007 VA neurological examination report noted that the veteran had a history of severe asthma and that he was on several medications. It was noted that the veteran described that his headaches were bifrontal and bimaxillary with a pressure-like component. The veteran stated that his headaches occurred two to three times a week and that if they were treated with over-the-counter medication such as Tylenol, they would last anywhere from a half hour to forty-five minutes. He stated that he had missed approximately two half days of work in the last six months secondary to headaches. He indicated that he had been tried on caffeine pills in the past, but that he felt they were not helpful. The veteran indicated that he treated his headaches mainly with over-the-counter Tylenol and occasionally left over Tylenol 3's from a surgery. It was reported that the veteran's headaches were associated with watering eyes, blurred vision, and mild photophobia, but not with phonophobia, nausea, vomiting, or anorexia. He stated that his headaches used to be worse several months ago, occurring at least multiple times per week, but that since having a septoplasty in June 2006 and getting glasses three months ago, he had noted some improvement. The veteran indicated that there was no family history of migraines. He reported that the headaches tended to increase in frequency and severity when his sinusitis was exacerbated. The examiner reported that there was tenderness noted over the veteran's maxillary sinuses, bilaterally, although the frontal sinuses were non-tender. The examiner indicated that the veteran's extraocular movements were intact and that the disks were sharp on the funduscopic exam. The examiner stated that the veteran's motor strength was 5/5 with normal bulk and tone and sensation to light touch. It was noted that the veteran's reflexes were 3+, with toes down going. The impression was sinus headaches supported by the veteran's history of sinusitis, a computed tomography scan of the head showing both acute and chronic sinusitis, exacerbation of headaches with sinus episodes, and maxillary sinus tenderness on examination. The examiner commented that there might be a post-traumatic component to the veteran's headaches although such was less likely due to the absence of loss of consciousness with his head injury. The examiner stated that the headaches occurred two to three times per week and affected the veteran's functioning as described above. The evidence as a whole shows that the veteran's headaches have not been productive of prostrating attacks averaging one in 2 months over the last several months, and thus no more than a noncompensable (0 percent) rating is warranted under Diagnostic Code 8100. The VA examination reports noted above do not refer to any prostrating attacks. The most recent January 2007 VA neurological examination report noted that the veteran had missed approximately two half days of work in the last six months secondary to headaches. The Board observes that such is not indicative of characteristic prostrating attacks averaging one in two months over the last several months, as required for a higher 10 percent rating. As this is an initial rating case, consideration has been given to "staged ratings" (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson v. West, 12 Vet.App. 119 (1999). However, staged ratings are not indicated in the present case, as the Board finds the veteran's headaches have not been compensably disabling since September 5, 2002, when service connection became effective. As the preponderance of the evidence is against the claim for an increased rating for post-traumatic headaches, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinkski, 1 Vet. App. 49 (1990). ORDER A higher rating of 30 percent, but not greater, is granted for dysthymia subject to the laws and regulations governing the disbursement of monetary benefits. A higher (compensable) rating for headaches is denied. REMAND The remaining issue on appeal is entitlement to an increase in a 30 percent rating for asthma. The Board finds that there is a further VA duty to assist the veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran was last afforded a VA respiratory examination in January 2007. The diagnosis was obstructive ventilatory impairment (asthma), progressive, and pretty responsive to medication. There was a notation that the veteran did not perform pulmonary function tests as he was requested. The Board observes that pulmonary function testing that includes FEV-1 and FEV-1/FVC is necessary for rating the veteran's asthma under the appropriate diagnostic criteria. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Therefore, the Board finds that an examination is necessary. Additionally, the Board finds that the requirements of VA's duty to notify and assist the claimant have not been met as to those claims. 38 U.S.C.A. §§ 5103, 5103a; 38 C.F.R. § 3.159. The notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify the veteran of what information or evidence is necessary to substantiate his claims; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim(s). Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Recently, the Court held in Vazquez-Flores v. Peak, No. 05- 0355 (U.S. Vet. App. January 30, 2008), that for a claim for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, under Vazquez, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, a review of the claims folder shows that sufficient notice has not been sent to the veteran as to this issue. The RO provided the veteran with a VCAA notice letters in June 2003 and December 2003. The notice letters did not specifically notify the veteran that he should provide evidence of the effect that worsening disabilities had on his employment and daily life (such as a specific measure or test). The letter also did not notify the veteran that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the of the symptoms of the condition for which the disability compensation is being sought, including their severity and duration, and their impact on employment and daily life. Thus, on remand the RO should provide corrective VCAA notice. Accordingly, the case is REMANDED for the following: 1. The RO should provide the veteran with VCAA notice that is compliant with the requirements of Vazquez-Flores v. Peak, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). Specifically, the notice should advise the veteran that to substantiate the claim for entitlement to an increase in a 30 percent rating for asthma, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase severity of the disability and the effect that worsening has on his employment and daily life. The veteran should also be afforded a copy of the applicable criteria needed for increased (higher) ratings under the applicable Diagnostic Codes for rating the service-connected disabilities on appeal. Also advise the veteran that if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from 0 percent to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. In addition, provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Schedule the veteran for a VA respiratory examination to determine the severity of disability due to his service- connected asthma. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All signs and symptoms necessary for rating the veteran's service-connected asthma should be reported in detail. All necessary tests and studies are to be performed, including pulmonary function tests. It is essential that the pulmonary function study contain the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FEV- 1/FVC). 3. Thereafter, readjudicate the claim for entitlement to an increase in a 30 percent rating for asthma. If any benefit sought on appeal remains denied, issue a supplemental statement of the case to the veteran and his representative, and provide an opportunity to respond before the case is returned to the Board. The purposes of this remand are to ensure notice is complete, and to assist the veteran with the development of her claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs