Citation Nr: 1302979 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 07-01 830 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased initial rating for a psychiatric disability, in excess of 30 percent prior to October 2, 2008, and in excess of 50 percent as of October 2, 2008. 2. Entitlement to an increased initial rating for seizures, in excess of 10 percent prior to October 2, 2008, and in excess of 20 percent as of October 2, 2008. 3. Entitlement to an increased initial rating for dizziness, in excess of 0 percent prior to November 12, 2010 and in excess of 10 percent as of November 12, 2010. 4. Entitlement to an initial compensable rating for stress headaches. 5. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from October 2000 to August 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, that assigned a 30 percent rating for depression, a 10 percent disability rating for a seizure disorder, and 0 percent ratings for stress headaches and dizziness, effective August 18, 2004. A May 2009 rating decision increased the rating from 30 percent to 50 percent for the Veteran's psychiatric disability and from 10 to 20 percent for seizures, effective October 2, 2008. Jurisdiction of these matters is with the RO in Denver, Colorado. In April 2010, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In July 2010, the Board remanded these matters for additional development. A January 2012 rating decisiongranted a higher 20 percent rating for dizziness, effective November 12, 2010. As the above grants do not represent a total grant of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Since the August 18, 2004 effective date of the grant of service connection, the Veteran's major depressive disorder with panic disorder approximates occasional occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, irritability, impaired memory, panic attacks, feelings of helplessness/hopelessness, thoughts of death, suicidal ideations and thoughts, an overdose, reports of "cuttings," anxiety, insomnia, poor coping skills, and poor insight with some decreased interest in activities. The Veteran has been employed or attending college during the appeal period. Occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships are not demonstrated. 2. Prior to October 2, 2008, the Veteran's seizure disorder was not manifested by at least two minor seizures per year on average and there is no evidence of a major seizure in the prior two years. 3. Since October 2, 2008, the Veteran's seizure disorder is manifested by at least two minor seizures in the last six months with no evidence that the Veteran has sustained an average of at least five to eight minor seizures weekly or a major seizure during the past six months. 4. Since the August 18, 2004, effective date of service connection, the Veteran's stress headaches have been characterized by pain, but no prostrating attacks occurring an average of once every two months over the past several months have been shown. 5. Since the August 18, 2004, effective date of of service connection, the Veteran's dizziness disability has been manifested by occasional dizziness, but was not manifested by dizziness and occasional staggering. 6. The medical and other evidence of record demonstrates that the Veteran's service-connected disabilities do not render her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating, but not higher, for major depressive disorder with panic disorder, from the August 18, 2004, effective date of service connection, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for an initial rating in excess of 10 percent prior to October 2, 2008, and in excess of 20 percent since October 2, 2008, for seizures, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8911 (2012). 3. The criteria for an initial compensable rating for stress headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2012). 4. The criteria for an initial 10 percent rating, but not higher, for dizziness, from the August 18, 2004 effective date of service connection, have been met. 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.87, Diagnostic Codes 6299- 6204 (2012). 5. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in November 2005, March 2006, May 2006, June 2008, September 2008, and July 2010. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent January 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of staged ratings, the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson, v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making the determinations below, the Board observes that, while a lay person, the Veteran is competent to report symptoms, such as sadness, headaches, and dizziness, which are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). She is also competent to report functional limitations associated with those symptoms, which are within the realm of her personal experience. Further, the Board has no reason to question the credibility of the Veteran's assertions in the absence of any evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995). Major Depressive Disorder with Panic Disorder The Veteran's service-connected major depressive disorder with panic disorder has been assigned an initial 30 percent rating prior to October 2, 2008, and a 50 percent as of October 2, 2008, pursuant to 38 C.F.R. § 4.130 , Diagnostic Code 9434. A General Rating formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran's major depressive disorder with panic disorder. Pursuant to the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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. § 4.130, General Rating Formula for Mental Disorders (2012). Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging from 0 to 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health- illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (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 rating 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. 38 C.F.R. § 4.126(a) (2012). A June 2005 VA examination report shows that the Veteran related that she was in a very good marriage. She was currently employed as a front desk clerk. Her relationships with superiors and co-workers were described as very good. She described being unable to work in the past due to a psychological problem. The Veteran's mental ability to work in the future was reported as fair. The Veteran's impaired efficiency in work tasks due to a psychological difficulty was reported as being occasionally. The extent of impaired efficiency in work performance was reported as being mild. The Veteran's decreased work productivity and impaired work reliability due to a psychological difficulty was reported as being only during periods of stress. Current problems included crying and reclusiveness. A fair understanding of the problem was reported. She took prescription medication for symptoms. Current affect was reported as good. Recent distress was reported as being severe. The Veteran acknowledged a significant lifestyle effect due to a psychological difficulty. Serious difficulties due to a psychological problem were reported with work and relationships. She reported leisure activities with immediate family, talking to relatives and friends, doing things with friends, eating out, and doing home projects. She spent time with co-workers, one close friend, and six or more casual friends. Relationships were rated as good. The examiner observed that the Veteran's manner of dress was meticulous and her hygiene was good. Level of distress appeared mild. Signs of distress were apprehension. Mood was best described as depressed. Affect appeared to be blunted. The Veteran reported that her current depression was mild. She had episodes of depression during the last six months that were frequent. Symptoms of depression reported were depressed mood, loss of interest or pleasure, appetite change, insomnia, agitation, motor retardation, fatigue, feeling worthless, guilt, thinking problems, thoughts of death, difficulty getting things done, interpersonal problems, low self-esteem, and hopelessness. Manic episodes were absent. Episodes of anxiety during the last six months were infrequent. Compulsions and obsessive thoughts were absent. Chronic nervousness and worry about several things was minimal. Phobias were absent. Thought process was logical and coherent. Delusions were absent. Disturbances in consciousness include seizures, but without a recent history of loss of consciousness or black outs. Attention and concentration were normal. She was oriented in all spheres. There were recent and remote memory deficits. A recent change in sleep pattern included insomnia. Pathological personality features were absent. Insight was fair. Judgment was good. Prognosis was fair. The Veteran reported suicidal ideation. This ideation iwa of low frequency, moderate duration, low intensity with a poorly conceived plan, and without intent to die. Risk was considered moderate. The Veteran denied current homicidal ideation. The diagnosis was major depressive disorder and a GAF score of 75 was assigned for the past year, and a current GAF score of 55 was assigned, noting moderate symptoms such as depressed mood and moderate difficulty in social, occupational, or school functioning. Coping skills were noted as poor. In a June 2005 private facsimile transmittal, it was noted that the Veteran took an over dose of prescription medication with the intent to "go to sleep and never wake up." A June 2005 private evaluation report shows that the Veteran had decreased energy, depression, feelings of hopelessness and helplessness, insight and judgment problems, orientation and memory problems, poor concentration, sleep disturbance, very strong guilty, and was a danger to herself, noting that she took an overdose a week earlier with the intent to die. The new stressor was that she had to quit school. That led to a suicide attempt, but she was improved prior to that. Current GAF score assigned was 45. An August 2007 VA medical record shows that the Veteran stated that over the past several months she had a decompensation of symptoms. She had to force herself not to go to bed as soon as she got home from work. She stated that her short term memory had steadily gotten worse. She was easily distracted and did not finish anything. She reported that she had to write down everything. The Veteran reported that currently, her last seizure was one year ago. The Veteran stated that she was easily irritated and reported that she said mean things that she did not mean to say. She described being so mad that she wanted to hit walls. The Veteran reported having thoughts of cutting herself to "release" it. She stated that she has a history of cutting herself " a couple of times a couple of years ago." She isolated when irritable. The Veteran stated that she used to like to socialize, but now got bored and just wanted to go home to sleep or watch television. She was having increased stress. Mental status examination revealed that the Veteran was well groomed, mood was depressed, affect was flat and detached, thought process was concrete, insight was poor, judgment was intact, memory was poor, and fund of knowledge was average. She denied past or present homicidal ideations. She reported having suicidal ideation off and on and denied specific plan and intent. She stated that she did not act on thoughts because she did not want to hurt her family and she knew she has a future. The diagnosis was major depressive disorder, recurrent, severe, and a GAF of 45 was assigned. A March 2008 VA medical record notes that the Veteran noted her medication dose was steadily increased, yet she still felt intensely sad at times. Concentration was poor. She was forgetful. She felt tired all the times and had insomnia. She did not have suicidal ideation and was optimistic about her future. She worked at a preschool and was working toward a Masters in psychology. She was happily married. On mental status examination she was well groomed, her mood described as " I get really sad sometimes, for no reason," affect was ranging, and insight was good. The assessment was major depressive disorder, single episode, mild-moderate, chronic. A GAF score of 60 was assigned. An October 2008 VA examination report shows that the Veteran reported feelings of sadness, low energy, low motivation, and a loss of interest in what went on around her. She reported hopelessness and suicidal ideation. She reported on a scale of 0 to 10 where 0 is no depression and 10 is feeling suicidal, that her current depression was at about a 6 to 7 typically, and went up to a 9 frequently at its worst. She often experienced suicidal ideation every day. She stated that she took a lot of pills a few times back in 2005, but was not hospitalized. She slept well at night, but did not have a good appetite. She had problems with concentration and memory. She reported anxiety attacks about once per month. She also reported frequent irritability, but did not throw things or have road rage. She yelled at people in her head. She currently worked in a preschool as a lead teacher. She never missed work because of depression and worked 30 hours a week. She was working on a secondary education degree. She had trouble concentrating in class and was easily distractible. She had been married six years and the relationship was rather up and down. The Veteran denied that she had significant friendships. On mental status functioning, the Veteran scored in the normal range of function. She was neatly and casually dressed. Her mood was in the moderately depressed range of functioning. She was able to maintain activities of daily living, including personal hygiene. Her symptoms were continuous. She was in treatment, but the medications were not working as effectively for her as they had in the past. Her thought processes and communication were not impaired. Her social functioning was impaired in that she had no significant friendships. Her employment was impaired as described in the report. The diagnoses were major depressive disorder, moderately severe, and panic disorder without agoraphobia, as likely as not related to her major depressive disorder. A GAF score of 55 was assigned. The examiner stated that there was reduced reliability and productivity due to major depression and panic disorder signs and symptoms. The Veteran's depression had worsened from her previous compensation rating. She experienced suicidal ideation on a near daily basis. She was now experiencing panic attacks in addition to depression. She had difficulty concentrating in class due to her symptoms of depression and it was thought that she had symptoms of impairment in her concentration and memory as a result of her depression. The Veteran's symptoms of major depression and panic disorder require continuous medication. During the April 2010 Board hearing, the Veteran testified that she had symptoms of sadness, lack of energy, difficulty sleeping, wanting to sleep all day, memory problems, loss of interest in prior leisure activities, and isolating in that she just wanted to be by herself. She went to bingo once a week with a girlfriend. She was in school, but her depression hampered her desire to want to finish school. She also missed class due to her depression and then felt guilty. Her memory problems and lack of motivation were impacting her school work. She also indicated that she often felt disoriented, lost, or not knowing where she was. She had a hard time with concentration. She saw a VA psychiatrist for treatment currently and was taking Zoloft for depression. She testified that she had thoughts of hurting herself or others, but had not taken any action along those lines. She had signs of irritability and reacting with anger towards her husband, but not towards her infant son. She was a full-time student and had no outside employment. A November 2010 VA examination report shows that the Veteran was receiving outpatient counseling and was prescribed psychotropic medications to help with anxiety, sleep, and depression. Additionally, the Veteran has been in some marital counseling, through the private sector. The Veteran reported some ongoing difficulties with mood disturbance. She reported moodiness and irritability and crying at least several times per month or several times per week. She could be slightly withdrawn and felt she has decreases in her memory. She also reported difficulty falling asleep due to stress, but she usually maintained sleep once she was asleep. The Veteran denied manic symptoms, elevated mood, impulsivity, grossly inappropriate behavior, and homicidal ideations. She denied active suicidal ideation or plans, but in the past the Veteran had an impulsive overdose. At times, she had cut on her arm when she was upset. The Veteran acknowledged anxiety most days of the week, but had not had any panic attacks in a long time. She denied any obsessive-compulsive symptoms or hyperarousal re-experiencing, avoiding, detachment, or numbing associated with military experiences. She reported some unusual perceptual experience where she felt she heard sounds and mumbling, but she denied any clear cut auditory or visual hallucinations or paranoia. Currently, she was attending college and hoped to obtain a Bachelors degree in English. She took care of a young child, attended school, and lives with her husband in their own home. She occasionally met with friends or play dates with other young mothers. Mental status examination revealed that the Veteran was casually dressed and groomed. She appeared slightly anxious. Thought processes were logical and goal oriented. She was estimated to be a reasonable historian. The Veteran's orientation, memory, and attention and concentration skills were grossly intact. The Veteran reported limited benefit from psychotropic medication and counseling. She reported continuous symptoms of intermittent anxiety, depression, sleep disturbance, irritability, and pain. There had been no remissions in the past year. She previously reported symptoms that included feelings of sadness, decreased energy, social withdrawal, intermittent suicidal thinking, and decreases in focus. The diagnosis was mood disorder not otherwise specified with depressive, anxious and sleep disturbance symptoms associated with a general medical condition, history of seizures and cardiovascular arrhythmia. The examiner stated that this diagnosis subsumed a previous diagnosis of major depression with panic attacks. Marital tensions were noted. A GAF score of 59 was assigned. The examiner stated that the Veteran's symptoms resulted in occasional decrease in work efficiency or intermittent periods of inability to perform occupational task, but with generally satisfactory functioning with regard to routine behavior, self-care, and normal conversation. She attended college full-time despite being unemployed. In the examiner's opinion, the Veteran retained cognitive, emotional, and behavioral capacities to do at least simple work tasks in a loosely supervised environment. The Board has considered all the evidence of record in light of the criteria noted above, and finds that by resolving all reasonable doubt in favor of the Veteran, that, collectively, her symptoms associated with her service-connected major depressive disorder with panic disorder more nearly approximate the criteria for a higher initial 50 percent disability rating. 38 C.F.R. § 4.7 (2012). In granting an initial 50 percent disability rating, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that the since the August 18, 2004, effective date of the grant of service connection, the Veteran's service-connected psychiatric disability is manifested by depressed mood, irritability, impaired memory, panic attacks, feelings of helplessness/hopelessness, thoughts of death, suicidal ideations and thoughts, a prior overdose, reports of "cuttings," anxiety, insomnia, poor coping skills, and poor insight with some decreased interest in activities. The reported symptomatology is consistent with no more than moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran has friends and family that she socializes with, was employed or attended college in a degree program, and thought processes were goal oriented. Collectively, the Board finds that symptomatology more nearly approximates occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent disability rating. The Board also notes that the Veteran has not been found to have 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 work like setting); or an inability to establish and maintain effective relationships or more severe symptomatology such as to warrant at least the next higher 70 percent rating during the time for which service connection has been established. In addition to the absence of most of the symptoms listed as characteristic of occupational and social impairment with deficiencies in most areas (criteria for a 70 percent rating), the Board also notes that none of the assigned GAF scores, alone, support the assignment of any higher rating. The Veteran has been assigned GAF scores of 45, 55, 59, and 60. According to DSM-IV, GAF scores between 51 and 60 denote moderate symptoms (e.g., 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 of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning . The reported symptomatology is consistent with no more than moderate to moderately severe symptoms or difficulty in social, occupational, or school functioning, in this regard, the Veteran had friends and family that she socialized with and was employed or attended college in a degree program. The Board is aware that the Veteran attempted, what has been described as "an impulsive overdose" in 2005, and has had suicidal ideations with no showing of plans or intent. However, the Board finds that collectively, the GAF scores assigned are consistent with an initial 50 percent rating. In addition, the Board finds that the evidence does not show during any time under consideration that she has had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to her psychiatric symptoms. In summary, the symptoms provide a basis for assigning a higher initial 50 percent rating, but no higher, for major depressive disorder with panic disorder since the August 18, 2004, effective date of service connection. Reasonable doubt has been resolved in favor of the Veteran in making this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Seizure Disorder The Veteran is rated 10 percent disabling for seizures prior to October 2, 2008 and 20 percent disabling as of October 2, 2008, pursuant to 38 C.F.R. § 4.124a , Diagnostic Code 8911 (2012). Under Diagnostic Code 8911 for petit mal epilepsy, both the frequency and type of seizure a Veteran experiences are considered in determining the appropriate rating. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1) (2001). Under the General Rating Formula for Major and Minor Epileptic Seizures, a 10 percent rating for a seizure disorder requires a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating requires at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent rating requires at least one major seizure in the last six months or two in the last year, or averaging at least five to eight minor seizures weekly. A 60 percent rating requires on average at least one major seizure in four months over the last year or nine to ten minor seizures per week. An 80 percent rating requires on average at least one major seizure in three months over the last year or more than ten minor seizures weekly. A 100 percent rating requires on average at least one major seizure per month over the past year. 38 C.F.R. § 4.124a, Diagnostic Code 8911, General Rating Formula for Major and Minor Epileptic Seizures (2012). Prior to October 2, 2008, the pertinent evidence includes a June 2005 VA general medical examination report showing that the onset of the Veteran's seizures was in September 2003 as grand mal seizures without a prior history. Since onset, they had been intermittent with remissions. Her current treatment consisted of Depakote and Folic acid with fair response to treatment. She had not had repeat grand mal seizures, but had petite mal type seizures one to two times per week with shaking feeling for one to two seconds. She was diagnosed with idiopathic epilepsy, and related problems of epilepsy/seizures. There were no significant effects on her usual occupation. A June 2007 VA administrative record shows that a review of medical records from a local physician was performed. It was noted that in May 2007 a diagnosis of history of seizures that seemed to be well-controlled on Depakote was made. The Veteran reported an occasional jerk that had been called a myoclonic jerk. The VA examiner noted that it was his suspicion that the report was not complete. An April 2008 VA medical record notes that the Veteran worked at a day care center eight hours a day and went to school four days a week. Her last seizure was more than one year ago. There was a positive screen for depression and stress. The diagnosis noted a history of seizures. Based on the foregoing medical evidence, the Board finds that the evidence does not show that the Veteran's seizure disorder is manifested by symptomatology that more nearly approximates the criteria for the next higher of 20 percent, rating under Code 8911 during the period prior to October 2, 2008. There was no evidence to show that she experienced at least one major seizure in the last two years or at least two minor seizures in the prior six months. Since October 2, 2008, the pertinent evidence includes an October 2008 VA neurological examination report showing that the Veteran had not had any generalized tonic-clonic seizures for several years and had not had any since she discontinued Depakote. She did not think that the frequency of the myoclonus was any different off the Depakote than it was on it, although she now only had a couple of episodes a week and sometimes a month may go by with only a few episodes. Since the episode of statis epilepticus, she had short-term memory problems. Neurological examination was performed. No myoclonic episodes were noted during the examination. The diagnoses were myoclonic epilepsy with history of myoclonus and generalized tonic-clonic seizures. The myoclonus continued with variable numbers of episodes from approximately two a week to two a month. She had not had any generalized tonic-clonic seizures for a couple of years. In April 2010, the Veteran testified that she sought hospital treatment for seizures three times and had myoclonic seizures a couple of times a week with intermittent jerking and twitching that lasts for a couple of minutes. A November 2010 VA neurological examination report shows that the Veteran used to take Depakote for seizures, but stopped in 2008 due to weight gain and had used medical marijuana since that time. She had no further generalized seizures. She continued to have myoclonic jerks that occurred a couple of times per month with several brief jerks upon sleeping. She did not note any other nocturnal events other than she bruised easily. She found herself driving at times and not certain of where she was. The diagnosis was myoclonic epilepsy with a history of myoclonus and generalized tonic-clonic seizures. The Veteran had no major seizures. She had minor myoclonic episodes three nights per month. Based on the foregoing medical evidence, the Board finds that the evidence does not show that the Veteran's seizure disorder is manifested by symptomatology that more nearly approximates the criteria for the next higher 40 percent rating under Code 8911 during the period beginning on October 2, 2008. There is no evidence to show that she experienced at least one major seizure in the last six months or that she averaged at least five to eight minor seizures weekly. In light of the above, there is no basis for further staged ratings, and the claims for higher ratings for the Veteran's seizures for each of the periods on appeal must be denied. In reaching this decision, the Board finds that the preponderance of the evidence is against the claims, and the claims must be denied.38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Stress Headaches The Veteran is currently assigned an initial 0 percent rating for stress headaches pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). Diagnostic Code 8100 provides ratings for migraine headaches. That diagnostic code provides for a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the 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, Diagnostic Code 8100 (2012). For rating codes, such as Diagnostic Code 8100, which do not provide for a 0 percent rating, a 0 percent rating will nevertheless be assigned when the symptomatology required for the minimum compensable rating is not shown. 38 C.F.R. § 4.31 (2012). A June 2005 VA general medical examination report shows that the Veteran's headaches had their onset in 2003. The Veteran reported she currently had them monthly. They lasted about five minutes in the frontal area of the head. Intensity was sharp pain at the beginning with tapering to mild before improvement in five minutes. She sometimes treated her headaches with Tylenol and sometimes not, with the same results. She was diagnosed with stress headaches with no significant effects on usual occupation. During an October 2008 VA neurological examination, the Veteran reported daily headaches that occurred anywhere on her scalp, in front, back, or elsewhere. They come on fairly gradually, but could get intense and lasted about an hour or two, whereas the headaches used to be more briefe. She did not go to bed and did not have nausea, vomiting, or visual scotomata. She was able to continue with her usual activities and tried to ignore them. She frequently took Tylenol, but did not find that very helpful. The diagnosis was muscle tension headaches occurring approximately daily that were not incapacitating. In April 2010 the Veteran testified that she got headaches in the back of her head every other day that lasted at least thirty minutes. When they occurred, she had to go to a dark room. The Veteran also testified that she missed class due to her headaches for which she took over-the-counter medications. A November 2010 VA examination report shows that the Veteran stated that her headaches were at the back of the head and lasted a half an hour or so. She took over-the-counter medication. They seemed to be better now, but at times had been worse and she had to miss school. She had some nausea and phonophobia during the headaches. She though that her headaches were worse during times of stress. In addition, she had headaches that occurred a couple of times per week that were random. They were jabs and stabs and they occurred generally for about half a minute and they did not recur in any specific pattern. The diagnosis was mixed headache disorder. The records indicate that the Veteran's headaches began in proximate time to the onset of dizziness and seizure disorder. They were variable in pattern, frequency, and severity. She had a mixture of tension type including some migraines and ice pick headaches. At the current time, her headaches were not incapacitating. She had no prostrating headaches over the previous several months, although apparently during pregnancy she did and she has missed work three times in the past year for headache due to the need to leave a light-filled room. To the best of her recollection, she had three prostrating headaches in which she had to miss class in the last year. Based on the above, the Board finds that the Veteran's headache symptoms most nearly approximate the criteria for the currently assigned initial 0 percent rating. In order to warrant an initial compensable disability rating, the Veteran's headaches must result in characteristic prostrating attacks averaging one in two months over the last several months. 38 C.F.R. § 4.7, 4.124a, Diagnostic Code 8100 (2012). While the Veteran reports chronic headaches that require over the counter medications, she has reported that she is able to continue with her activities and ignore them. During the November 2010 VA examination, she stated that she had no prostrating headaches over the previous several months, but to the best of her recollection, she had three prostrating headaches in which she had to miss class in the last year. However, the Board does not find that evidence supports a finding that the Veteran's headache disability has resulted in characteristic prostrating attacks occurring an average of once every two months over the past several months, the criteria needed for a compensable 10 percent disability rating. Even if there were three occurrences of prostration, that is less than an average of once every two months. The Board has considered rating the Veteran's headaches under other Diagnostic Codes, in order to provide her with the most beneficial rating. However, as the criteria in Diagnostic Code 8100 most accurately resembles the symptoms associated with the Veteran's service-connected headaches, the Board finds that is the most appropriate Diagnostic Code under which to rate the Veteran's disability. 38 C.F.R. § 4.7, 4.124a, Diagnostic Code 8100 (2012). Accordingly, the Board finds that an initial compensable disability rating is not warranted for the Veteran's service-connected headaches. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Dizziness The Veteran is assigned an initial 0 percent rating for dizziness prior to November 12, 2010 and a 10 percent rating as of November 12, 2010, pursuant to 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204 (2012). The Veteran's specific disability is not listed on the Rating Schedule, thus, Diagnostic Codes 6299-6204 have been assigned pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and 99. 38 C.F.R. § 4.20 (2012). Diagnostic Codes 6299-6204 rate injuries and diseases of the ear, and more particularly, peripheral vestibular disorders. Diagnostic Code 6204 assigns a disability rating of 10 percent for occasional dizziness, and a disability rating of 30 percent for dizziness and occasional staggering. The Board notes that 30 percent is the highest schedular rating available under Diagnostic Code 6204. Objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating to be assigned under this code. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87, Diagnostic Code 6204 (2012). The Veteran was previously denied service connection for hearing loss and tinnitus. For rating codes which do not provide for a 0 percent rating, a 0 percent rating will nevertheless be assigned when the symptomatology required for the minimum compensable rating is not shown. 38 C.F.R. § 4.31 (2012). Service treatment records show that in December 2004, the Veteran was seen with complaints of dizziness one to two times a day. The assessment was dizziness as a result of viral labyrinthitis versus benign positional vertigo. A June 2005 VA examination report shows complaints of daily dizziness. On VA neurological examination in October 2008, the Veteran was diagnosed with episodes of dizziness that were not disabling and occurred approximately two times per week. The dizziness was of unknown etiology. In April 2010, the Veteran testified that sometimes saw sees spots and got nauseated during episodes that usually lasted about five minutes, but did not take any medications for her dizziness. A November 2010 VA neurological examination report shows that the Veteran stated that she had daily episodes of dizziness which occurred generally with standing. She felt that there was a slight spinning sensation in her head. She felt a little bit dizzy, like she might pass out. Her vision would go black for a second and see saw some spots. That was brief and resolved spontaneously. She had not had any loss of consciousness. The episodes occurred daily and lasted a couple of seconds. She lost her balance one time per week, but she had not lost consciousness and had no falls. The VA examiner stated that she did not meet the neurologic criteria for a diagnosis of labyrinthitis although that diagnosis appeared in the medical reports. Presyncope was a more accurate diagnosis. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the competent medical and other evidence of record, the Board finds that an initial rating of 10 percent, but not higher, is warranted for the entirety of this appeal. Considering the evidence regarding the frequency and duration of the symptoms of dizziness reported by the Veteran and those noted by medical examiners, the Board finds that since the effective date of the grant of service connection that the Veteran's dizziness disability is manifested by occasional dizziness, thereby satisfying the criteria for a 10 percent rating. The Veteran is competent to testify as to the presence of observable symptomatology such as dizziness. Layno v. Brown, 6 Vet. App. 465 (1994). In assigning an initial 10 percent disability rating, the Board finds that records indicating that the Veteran has dizziness as a result of viral labyrinthitis versus benign positional vertigo suggests that the Veteran has some degree of vestibular disequilibrium, and thus, a compensable rating is warranted under Diagnostic Code 6204. However, at no point during this appeal has the Veteran's service-connected dizziness disability met the criteria for the next highest rating of 30 percent because the preponderance of the evidence of record does not indicate that the Veteran's disability is manifested by dizziness and occasional staggering. Accordingly, the Board finds that, resolving reasonable doubt in favor of the Veteran, an initial rating of 10 percent, but not higher is warranted, for her dizzines. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other Considerations The above determinations are based on application of pertinent provisions of VA's rating schedule. The Board finds that the rating criteria fully describe the symptoms of the Veteran's major depressive disorder with panic disorder, seizure disorder, stress headaches, and dizziness disabilities on appeal and their level of severity, and provide for higher ratings. Therefore, the Board finds that the Veteran's service-connected disabilities and their manifestations are not exceptional. Thun v. Peake, 22 Vet. App. 111 (2008). In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of higher ratings on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (2012). The Board further finds that there is no evidence of marked interference with employment or frequent periods of hospitalization, so as to warrant referral of the case to appropriate VA officials for consideration of an extra schedular rating for these issues. Shipwash v. Brown, 8 Vet. App. 218 (1995). Some interference with employment is anticipated by the assigned ratings, but the Board finds that interference does not rise to the level of marked. Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321 (2012). TDIU The Veteran contends that she is unable to maintain substantially gainful employment due to her service-connected disabilities and that a TDIU rating is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2012). Service connection is currently in effect for major depressive disorder with panic disorder, rated 50 percent; seizure disorder, rated 20 percent; paroxysmal atrial tachycardia, rated 10 percent; dizziness, rated 10 percent; and stress headaches and dermatitis of the hands and feet, each rated 0 percent. The Veteran's combined rating for compensation is 80 percent. Thus, the Veteran meets the percentage requirements of 38 C.F.R. § 4.16(a) (2012). The remaining question, then, is whether the Veteran's service-connected disabilities render her unemployable. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to her age or any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A June 2005 VA general medical examination report shows that the Veteran was currently employed as a seasonal desk clerk, and she reported that she had lost eight months of work in the last 12 month period due to depression. She attended community college for one semester. She was diagnosed with stress headaches, with no significant effects on usual occupation. She was diagnosed with idiopathic epilepsy, and related problems of epilepsy/seizures, with no significant effects on usual occupation. An April 2008 VA medical record notes that the Veteran worked at a day care center eight hours a day and went to school four days a week. An August 2010 VA examination report shows that the claims file was reviewed by the examiner. The examiner opined that the Veteran employability was not impacted by her eczema, which was mild and caused no functional impact on her joints. The examiner also opined that the Veteran's employability is not limited by her paroxysmal atrial tachycardia, which was mild and did not require any drug treatment for control. Most importantly, it is hemodynamically stable off of drug therapy. The examiner opined that all the conditions combined, eczema, paroxysmal atrial tachycardia, migraine headaches, depression, labyrinthitis, and seizure disorder did not preclude employment. A November 2010 VA psychiatric examination report shows that the Veteran was currently attending college and hoped to obtain a Bachelors degree in English. She took care of a young child, attended school, and lived with her husband in their own home. She occasionally met with friends or for play dates with other young mothers. The examiner stated that the Veteran's symptoms resulted in occasional decrease in work efficiency or intermittent periods of inability to perform occupational task, but generally satisfactory functioning with regard to routine behavior, self-care, and normal conversation. She attended college full-time despite being unemployed. In the examiner's opinion, the Veteran retained cognitive, emotional, and behavioral capacities to do at least simple work tasks in a loosely supervised environment. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render her unable to secure or follow a substantially gainful occupation. The Board does not doubt that the Veteran's service-connected disabilities, which combine to an 80 percent rating, cause the Veteran some occupational impairment. However, there is a lack of evidence showing that there are circumstances that place her in a different category to warrant entitlement to a TDIU. The medical evidence does not show that the Veteran's service-connected disabilities solely render her unemployable. More importantly, the competent medical evidence includes a VA medical opinion that considered the Veteran's service-connected disabilities, and concluded that the Veteran's disabilities did not preclude employment. A November 2010 VA examiner found that the Veteran's service-connected psychiatric symptoms resulted in occasional decrease in work efficiency or intermittent periods of inability to perform occupational task occasional decrease in work efficiency, but did not preclude employment. Thus, based on the evidence of record, the Board finds that the evidence does not show an inability to secure or follow a substantially gainful occupation, solely due to service-connected disabilities. Therefore, the Board finds that the preponderance of the evidence is against the claim for a TDIU. The preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial 50 percent rating, but not higher, for major depressive disorder with panic disorder, from August 18, 2004, is granted. An initial rating in excess of 10 percent prior to October 2, 2008, and in excess of 20 percent since October 2, 2008, for seizures, is denied. An initial 10 percent rating, but not higher, for dizziness, from August 18, 2004, is granted. An initial compensable rating for stress headaches is denied. Entitlement to a TDIU is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs