Citation Nr: 1237658 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-48 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased disability rating for schizophrenic reaction with associated headaches, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from December 1952 to December 1956 and from October 1957 to August 1975. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. At that time, the RO granted an increased, 30 percent evaluation, effective April 14, 2009, for schizophrenic reaction with associated headaches. See AB v. Brown, 6 Vet. App. 35 (1993). In June 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge who has since retired from the Board. A transcript of this hearing is associated with the claims file. The Veteran was notified by an August 2012 letter that he had the option to request another hearing before the Veterans Law Judge who would ultimately decide his appeal. The Veteran did not indicate that he wished to appear at an additional Board hearing within the time allotted. Therefore, the Board will proceed to evaluate the appeal. See 38 U.S.C.A. §§ 7102, 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's schizophrenic reaction was manifested by anxiety, depression, insomnia, and hallucinations, but did not cause impaired speech, memory, or thought processes; there were no objective indications of panic attacks, suicidal or homicidal ideations, or delusions. 2. Throughout the rating period on appeal, the Veteran has had migraine headaches characterized by attacks occurring at least once a month over the last several months, but that are not so completely prostrating and prolonged as to be productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for schizophrenic reaction have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9203 (2011). 2. The criteria are met for a separate 30 percent disability evaluation for migraine headaches. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in May 2009, June 2009, and September 2009, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim of entitlement to an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. In addition, the letters from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. The unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and reports of VA post-service treatment, as well as the Veteran's own statements in support of his claim for an increased disability evaluation for his service-connected condition. The Veteran was examined by VA in connection with his claims in 2009 and 2011. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The examination reports contain all the findings needed to evaluate the Veteran's claim, including his history and evaluations. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App 505 (2007). Analysis Schizophrenic Reaction The Veteran's schizophrenic reaction is presently evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9203. A 30 percent disability rating is warranted where there is 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, chronic sleep impairment, and mild memory loss. See 38 C.F.R. § 4.130, Diagnostic Code 9203 (2011). Under 38 C.F.R. § 4.130, Diagnostic Code 9203, a 50 percent disability 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-term 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; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Code 9411. For the next higher 70 percent evaluation to be warranted, there must be occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as: suicidal ideation; obsessive 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform 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. §§ 4.125-4.130. Considering the evidence relating to the Veteran's service-connected schizophrenic reaction for the entire rating period on appeal, the Board finds that the Veteran's disability picture is most consistent with the current 30 percent disability evaluation, and that an increased disability evaluation is not warranted for any portion of the rating period on appeal. In this regard, the Board observes that the objective clinical evidence of record indicates that he experiences some social or occupational impairment due to hallucinations, insomnia, depression, suspiciousness, and anxiety. At his September 2009 VA examination, he reported auditory hallucinations, paranoia about his surroundings, insomnia, and depression. Upon examination in September 2009, he had coherent, spontaneous and relevant speech, flattened affect, depressed mood, good concentration and memory, unimpaired impulse control, and unimpaired insight and judgment. He was oriented and there was no evidence of panic attacks; there was report of obsessional behavior. His thought processes and communication were good, and there was no objective evidence of delusions, although the Veteran was preoccupied with reported hallucinations; he had normal psychomotor activity and good hygiene during his mental status examinations. At his August 2011 VA examination, the Veteran reported insomnia, anxiety, impaired memory, auditory and visual hallucinations. Upon examination, he had normal speech, good eye contact, and normal motor activity; he was alert and oriented, but his affect was mildly flat. The Veteran had a normal thought process, without evidence of psychosis, and there was no evidence of panic attacks, spatial disorientation, or obsessive or ritualistic behavior; he denied suicidal or homicidal ideation. Concentration was not impaired, and the Veteran had unimpaired insight and judgment. Although he did show some mild cognitive difficulties, the examiner concluded these were unrelated to the schizophrenia. Further, there is no evidence that he is unable to function independently in an appropriate and effective manner as a result of his schizophrenic reaction; the August 2011 VA examiner found that the Veteran had recurrent recollections, diminished interest, difficulty concentrating, hypervigilance, and anxiety, but that the Veteran's symptoms were not severe enough to interfere with occupational and social functioning, or to require medication. The VA examiner noted that the Veteran does not attend behavioral health sessions. In addition, according to the VA examination reports, the Veteran had few social relationships outside of his family, but such social impairment is reflected in the 30 percent evaluation assigned throughout the rating period on appeal. There is no evidence here of occupational impairment due to schizophrenia. The Veteran worked in the civil service for 17 years, before retiring, and then as a mechanic for 6 years, retiring due to age in approximately 2006. He has not stated that his psychiatric symptoms impaired his occupational functioning in any way when he did work. Additionally, the Board points out that the Veteran had a Global Assessment of Functioning (GAF) score of 62 at the August 2011 VA examination, and a GAF score of 65 at the September 2009 VA examination. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.'" Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV)). See, too, 38 C.F.R. § 4.130. A GAF score is highly probative, as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). A GAF score of 61-70 contemplates 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, has some meaningful interpersonal relationships. See DSM-IV at 44-47. The VA examination reports consistently indicate that the Veteran's symptoms were productive of no more than mild impairment due to his schizophrenic reaction. So there is no justification for increasing the rating for the Veteran's schizophrenic reaction in excess of 30 percent on the basis of his GAF scores; overall, his GAF scores were commensurate with his current rating. See 38 C.F.R. § 4.7. The Board finds that the schedular evaluation assigned for the Veteran's service-connected schizophrenic reaction is adequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected schizophrenic reaction. The Board also considered the Veteran's statements that his schizophrenic reaction is worse and that he should be granted a higher rating based, in part, on his lay statements. To the extent that he contends that a higher rating should be assigned, the Board notes that in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. In this regard, the Board acknowledges that, according to the Veteran's various statements, his service-connected schizophrenic reaction has worsened. However, the VA examiners found that the Veteran's service-connected schizophrenic reaction was as previously characterized and is productive of no more than mild effects on his activities of daily living, providing evidence against this claim of high probative value. Although the Veteran is competent to report his symptoms, he is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. More competent evidence concerning the nature and extent of the Veteran's service-connected schizophrenic reaction was provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. As there is a preponderance of the evidence against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Migraine Headaches The Board finds that the Veteran is entitled to a separate evaluation for his migraine headaches. Migraine headaches are currently rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. According to Diagnostic Code 8100, a 10 percent disability evaluation is assigned for prostrating attacks averaging one in 2 months over the last several months. For the next higher 30 percent disability evaluation, there must be characteristic prostrating attacks occurring on average once a month over the last several months. Accordingly, for a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Board acknowledges the opinion of the August 2011 VA examiner that the Veteran's headaches are less likely than not caused by or the result of his paranoid schizophrenia. However, the fact remains that the Veteran has been service connection for schizophrenia with headaches since his discharge from service. The initial rating action was based on medical evidence concluding that the headaches were part of the psychiatric disability. The medical evidence now suggests otherwise. Regardless, he is service connected for both conditions, and the symptoms of headaches cannot be adequately compensated under the diagnostic criteria for rating mental disorders. Upon reviewing the rating criteria in relation to the evidence regarding the Veteran's migraine headaches, the Board finds that the Veteran's disability picture is most consistent with a 30 percent disability evaluation for the entire rating period on appeal. The evidence of record shows that, upon VA examination in June 2009, the Veteran reported that he experienced headaches approximately 3 times per week, lasting several hours at a time; he did not describe these headaches as prostrating. The Veteran reported that his headaches were accompanied by weakness and fatigue, sensitivity to noise and light, loss of appetite, loss of concentration, and irritability. The VA examiner noted that the Veteran took medication for relief of his headaches, but that he did not require continuous medication. At an August 2011 VA examination, the Veteran reported that he has headaches about 4 times per month, with symptoms of pain in photosensitivity, and aura; he denied that his headaches were prostrating, and stated that the headaches made his activities of daily living difficult, as they were resolved with rest, but did not totally interfere with such activities. Similarly, VA treatment records dated from January 2007 to May 2009 indicate that the Veteran was treated for migraine headaches. The Veteran has not complained of any nausea or vomiting, and reported that his headaches are resolved by medication and rest. VA neurological evaluations showed intact cranial nerves and normal motor strength. In conclusion, the evidence of record reveals manifestations consistent with a 30 percent evaluation, for the entire rating period on appeal, for migraine headaches. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Considerations Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluations assigned for the Veteran's service-connected schizophrenic reaction and migraine headaches are adequate in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disabilities, as the criteria more than address the Veteran's impairments. In light of the above, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for disability rating in excess of 30 percent for schizophrenic reaction is denied. A 30 percent disability rating for migraine headaches is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs