Citation Nr: 1306291	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  06-11 031A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to a total disability rating based on individual unemployability (TDIU).  

2. Entitlement to an initial evaluation in excess of 10 percent for service-connected migraines, prior to January 26, 2012, and in excess of 50 percent thereafter.   

3. Entitlement to an initial evaluation in excess of 30 percent for service-connected major depressive disorder associated with lumbar spine strain.  


ATTORNEY FOR THE BOARD

A. Nigam, Counsel



INTRODUCTION

The Veteran served on active duty from August 1990 to August 1992.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision and an August 2006 by the above Department of Veterans Affairs (VA) Regional Office (RO).  The June 2006 decision, inter alia, granted service connection for migraines, and assigned a 10 percent rating, effective January 25, 2006.  The August 2006 decision granted service connection for major depressive disorder associated with lumbar spine strain, and assigned a 30 percent rating, effective January 25, 2006.  Also on appeal is a February 2008 rating decision, which denied entitlement to a TDIU.  

In July 2008, the Board, inter alia, remanded the claims to the RO via the Appeals Management Center (AMC), in Washington, DC for issuance of a statement of the case (SOC) on the matters of increased initial evaluations for the service-connected migraines and the service-connected major depressive disorder associated with lumbar spine strain, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  In December 2009, the Board again, inter alia, remanded the claims to the RO for further development, to include obtaining outstanding treatment records and scheduling VA examinations.  

In a February 2012 rating decision, the RO continued a 10 percent rating for the service-connected migraines, prior to January 26, 2012, and granted a 50 percent rating thereafter.  The Veteran continues to appeal for a higher rating.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  The claim for an initial evaluation in excess of 30 percent for the service-connected major depressive disorder was denied in a February 2012 supplemental statement of the case (SSOC).  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  

As a final preliminary matter, in a statement submitted in March 2012, the Veteran has raised the issue of entitlement to an earlier effective date for the grant of service connection for the migraines disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), and, as such, is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished.  

2. In a statement accompanying the VA Form 9, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal as to the matter of entitlement to a TDIU.  

3. For the period prior to January 26, 2012 and onward,  the Veteran's migraine headaches symptomatology had more nearly approximated that of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  

4. For the entire appeal period, the Veteran's major depressive disorder associated with lumbar spine strain has more nearly approximated occupational and social impairment with reduced reliability and productivity with difficulty in establishing and maintaining effective work and social relationships.  


CONCLUSIONS OF LAW

1. The criteria for a withdrawal of the Veteran's substantive appeal on the issue of entitlement to a TDIU have been met. 38 U.S.C.A. §§7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2012).  

2. For the period prior to January 26, 2012, the criteria were met for an initial disability rating of 50 percent, for migraines.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100 (2012).   

3.  During the pendency of the appeal, the criteria for a rating in excess of 50 percent for migraines have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100 (2012).   

4. The criteria for an initial disability rating of 50 percent, but no higher, have been met for major depressive disorder associated with lumbar spine strain.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.125, 4.130, DC 9434 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).  

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011); see also Jandreau.  In certain instances lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

Duty to Notify and Assist

The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claims.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).  

With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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).  

Filing an NOD begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104  and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id.  There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal.  

Pre- and post-adjudication VCAA letters dated in March 2006 and July 2008, collectively explained the evidence necessary to substantiate the claims for service connection, and informed the Veteran of his and VA's respective duties for obtaining evidence.  These letters also 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 v. Nicholson, 19 Vet. App. 473, 490-491 (2006).  As noted, the claims were readjudicated in the February 2012 SSOC and rating decision.  Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains in-service and post-service medical treatment records, and reports of VA examinations (also known in the record as a Disability Benefits Questionnaire or "DBQ") (May 2006, June 2006, December 2011 and January 2012).  With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  These VA examination reports generally reflect review of the claims file, examination of the Veteran, and description and evaluation of his claimed disabilities.  Cumulatively, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issues decided hereinbelow.  

The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues have been obtained and the case is ready for appellate review.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012).  

Withdrawal

An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Further, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  

The record reflects that the Veteran perfected an appeal to the February 2008 rating decision that denied entitlement to a TDIU.  As noted, in correspondence received at the Board in March 2012, the Veteran indicated that he no longer wished to pursue his appeal, and requested the withdrawal of his claim for entitlement to a TDIU.  

The Board finds that the Veteran's written statement qualifies as a valid withdrawal of the issue of entitlement to a TDIU.  See 38 C.F.R. § 20.204.  Thus, there remains no allegation of errors of fact or law for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this claim, and it must be dismissed.  


The Merits of the Claim-Entitlement to Increased Ratings

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time.  In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder.  In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings.  See Fenderson, supra, at 125-26.  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, as here, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

Migraine Headaches

Under Diagnostic Code 8100, a noncompensable (0 percent) rating for migraine headaches is warranted with less frequent attacks.  A 10 percent rating is in order for migraine with characteristic prostrating attacks averaging one in two months over the last several months.  A 30 percent rating is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months.  A maximum evaluation of 50 percent is awarded when migraine is characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.  38 C.F.R. § 4.124a.  

The regulations do not define the term "prostrating," but "prostration" is defined as "extreme exhaustion or powerlessness."  See Dorland's Illustrated Medical Dictionary 1554 (31st ed.2007).  

The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not.  See Ardison v. Brown, 6 Vet. App. 405, 408 (1994).  The Board finds migraine headaches to be a condition that, by its inherent nature, is at times active and at times inactive.  

The Veteran appealed the assignment of his initial rating of 10 percent for migraines, effective January 25, 2006.  The Board finds that the evidence of record is consistent with an initial maximum 50 percent rating for migraines throughout the entire appeal period.  38 C.F.R. § 4.7.  

Private and VA treatment records, dated from 2005 to 2011, indicate the Veteran had complained of and was treated for migraines, multiple times a month, lasting for 12 to 24 hours, for which he had been prescribed Darvocet, Lodine, Phenergan, Gabapentine, Depakote, Topmax and Lortab, with little-to-no relief.  These records show he reported that he had experienced intense, daily headaches that resulted in an inability to sleep at night, and symptoms of nausea, occasional vomiting, photophobia and phonophobia.  Moreover, in statements received from 2004 to 2006, he reported that he was at times unable to perform the duties while employed as an apartment manager, and was unable to continue with a VA vocational rehabilitation program, due to his unbearable headaches.  He indicated that his headaches were so incapacitating that he was forced to be isolated from his family, and to seek relief by lying down and cutting off all noise; and that it would take him hours to recover and become fully functional after taking his medication.  The Veteran reported that he would occasionally wake up with headaches and be unable to sleep because of them.  He noted that he had received Demrol injections to treat his pain.  

The Veteran had also reported that because of his service-connected disabilities he was absent from work as a school teacher on so many occasions during the 2005 to 2006 school year that the payment for the substitute teachers' salaries were deducted from his own.  In support of his assertions, in January 2006, the Veteran submitted a report of his "Teacher Attendance for 8/08/05-1/17/06," which reflects that he used 7 sick days and 2 personal days for that time frame.  In a statement received in August 2008, the Veteran informed VA that he resigned from his employment as a school teacher in May 2007 due to his service-connected disabilities, including his migraines.  He indicated that he was then employed as a clerk from October 2007 to November 2007, but that he had to discontinue this sort of employment because he was unable to "lift, stand, carry, bend[,] push and walk for 8 hours."  In 2011, during VA treatment, the Veteran acknowledged that he resumed teaching because he could not financially afford to not teach.  However, it was noted that he could barely function at work because of his service-connected disabilities, including his headaches.  

The Board has duly considered the Veteran's numerous personal statements, and finds him to be uniquely suited to describe the severity, frequency, and duration of his service-connected migraine disability.  See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  The Board accords these statements high probative value in determining the number and severity of the migraines the Veteran experiences.  

Additionally, on VA examination in May 2006, the Veteran reported experiencing constant, daily, bad headaches that began in the back of the head and eventually covered the entire head.  He described the pain as throbbing and pounding, accompanied by nausea, vomiting, phonophobia, photophobia and blurry vision.  He reported taking Gabapentin, Etodolac and various narcotics for his pain, including for his neck and back pain.  He was assessed with common migraine.  The examiner observed that the migraine appeared to be myofascial pain syndrome and cervicalgia, and to have a component of analgesic rebound headache as well.  The examiner opined that given that the Veteran's headaches were not a significant problem prior to 9 months prior to the examination, it appeared that the exacerbation of his migraine disorder was "significant."  

The Board finds that, for the period prior to January 26, 2012, both the medical and lay evidence of record tended to show that the Veteran's migraine disability more nearly approximated that of very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability.  In this regard, the May 2006 examiner's conclusion that the exacerbation of the Veteran's migraine disorder was "significant," coupled with his credible lay assertions that he missed days of employment due to daily prostrating migraine attacks, are probative evidence that his migraine disability was productive of severe economic inadaptability.  

In summary, the Board finds that, prior to January 26, 2012, the evidence more nearly approximated a maximum 50 percent initial disability evaluation for the Veteran's migraine disability under DC 8100.  38 C.F.R. §§ 4.3, 4.7.  Application of Diagnostic Code 8100, which specifically addresses migraines, best contemplates the symptomatology associated with the Veteran's service-connected disability.  There is no other applicable diagnostic code that affords the Veteran a higher rating.  Discussion of an extraschedular rating follows on p. 26-27.



Major Depressive Disorder

The Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders.  38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130.  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under-or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  See 38 C.F.R. § 4.126.  

If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436 (1992).  

The Board observes that the Veteran has been diagnosed with several psychiatric disorders, to include mood disorder due to chronic pain, depression, major depressive disorder, panic disorder without agoraphobia, and generalized anxiety disorder, with a history of narcotic dependency.  His major depressive disorder has been service-connected.  Given the ambiguities in the record and bearing in mind the benefit of the doubt, the Board will deem all psychiatric symptomatology and impairment to be attributable to the service-connected major depressive disorder disability.  See generally Mittleider v. West, 11 Vet. App. 181 (1998).  

For ease of reference, the Board will evaluate this claim under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434.  The General Rating Formula provides a 30 percent evaluation when 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 (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events).  

A 50 percent evaluation is warranted where there is 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 or abstract thinking; disturbances of motivation and mood; and 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 a work like setting); inability to establish and maintain effective relationships.   

A 100 percent evaluation is indicated where 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.  Id.  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.  

In assessing the evidence of record, it is important to note that a Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).  A score of 31 to 40 is assigned where there is 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; child frequently beats up younger children, is defiant at home, and is failing at school).  Id.  A score of 41-50 is assigned where there are 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).  Id.  A score of 51-60 is assigned where there are 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, conflict with peers or co-workers).  Id.  A score of 61-70 is indicated where there are 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.  Id.  

The Veteran has appealed the assignment of his initial rating of 30 percent for major depressive disorder, effective January 25, 2006.  The Board finds that the criteria for an initial 50 percent rating have been met for the entire appeal period, but that the criteria for an initial rating in excess of 50 percent have not been met for any time during the appeal.  

In October 2003, the Veteran filed his original claim for service connection for a nervous condition secondary to his service-connected disabilities and his nonservice-connected chronic pain syndrome.  VA treatment records, dated from 2004, generally indicate the Veteran was diagnosed with chronic pain syndrome, and complained of an inability to sleep because of his chronic pain, which made him moody and irritable.  

In February 2005, the Veteran was referred for a VA psychiatry consult.  He reported teaching the 6th grade, and having problems with irritability and anger control, as well as panic attacks at night, with resulting chest pain, profuse sweating, and shortness of breath.  He indicated he had a good relationship with his wife and children, but noted that they too complained about his irritability, problems with anger control, anxiety with panic attacks, anhedonia and poor focus.  The Veteran denied feeling sad or hopeless, and denied experiencing mania, psychosis, suicidal ideation, or homicidal ideation.  His psychomotor activity was observed to be restless; but his mood was described as "fair," he had appropriate speech content and mood, his thought process was goal directed and coherent, and he had no delusions, hallucinations, suicidal or homicidal ideations, obsessions and compulsions.  His insight and judgment were described as "fair" and his abstraction was characterized as "good."  The Veteran was diagnosed with mood disorder due to chronic pain, with accompanying stressors at work.  He was assigned a GAF score of 65.  

A VA mental disorders examination report, dated in June 2006, shows the Veteran complained of depression and pain.  He reported that he had neck, back, shoulder and headache pain since he was discharged from the military, and that these conditions had increased in severity over the years.  He also complained of frequent abdominal pain, and indicated that his chronic pain related to his service-connected disabilities, and the severe fatigue and insomnia that the pain caused, interfered with his life in "every respect," including causing him to miss 40 days of work as a school teacher and losing income as a result.  The Veteran reported that he believed he was losing his mind, was very afraid, and began to cry.  He described feeling irritable and intolerant of noises, which caused him to verbally lash out at the school children whom he taught, as well as his family.  He reported that he was afraid he might hurt a child.  The Veteran also reported symptoms of feeling extremely tired during the day and not wanting to do anything.  He reported that he went from being someone who enjoyed the outdoors, to someone who frequently stayed in bed and isolated himself from others.  He noted that he had a lot of friends at church, but had no interest in seeing them because of his psychiatric disorder.  The Veteran complained of anxiety and panic from time to time, and fluctuations in concentration and forgetfulness, especially with short term memory.  He denied having any suicidal thoughts, but reported frequently feeling hopeless.  He also denied experiencing any auditory or visual hallucinations, or delusions, but reported being paranoid of people at times.  

The Veteran indicated he first received treatment at VA in February 2005, when he was diagnosed with a mood disorder, not otherwise specified, due to his general medical condition, and was assigned a GAF score of 65.  He denied being hospitalized for psychiatric purposes.  He also denied using alcohol or drugs at any time.  He denied experiencing any difficulty in carrying out his day-to-day activities such as personal hygiene, driving and walking; however, he reported that during the past year he looked forward to leaving work at the end of the day, and dreaded going to work in the morning.  

Mental status examination included observations that the Veteran was alert and fully oriented, but very agitated, anxious and restless during the interview.  The examiner noted the Veteran's psychomotor activity was increased, his affect was depressed, and his mood was irritable.  The Veteran's memory was described as intact in all spheres, but his concentration seemed to be somewhat impaired.  The examiner observed the Veteran expressed a lot of frustration and some hopelessness, but there was no evidence of suicidal ideation, homicidal ideation, or psychotic thinking, and his insight was fair and judgment was good.  The Veteran was diagnosed with major depressive disorder, severe, single episode.  He was not found to have a personality disorder.  His stresses were characterized as "moderate," and noted to include his father's death and his son's deafness.  The Veteran was assigned a GAF of 55 at the time of the examination, and a GAF of 65, at its highest, for the previous year.  

The examiner concluded that the Veteran's depressive symptoms had worsened over the previous year, without any change with medication.  The examiner observed that it appeared the psychiatric condition was partly related to the Veteran's service-connected back disability, and associated pain.  In this regard, the examiner noted that the chronic pain caused physical limitations that caused depression to a significant extent.  The examiner indicated that the Veteran's headaches and abdominal pain were symptoms of his depression.  The examiner characterized the severity of the Veteran's depressive illness as moderately severe, and noted that the depressive illness caused moderately severe impairments in occupational function, as supported by missing several days of work, and also impairments in social function, as evidenced by the general isolation and social withdrawal.  

A VA mental health progress note, dated in June 2006, reflects that the Veteran was dealing with depression that was only partially responding to pharmaceutical treatment.  

In a statement received in February 2007, the Veteran reported that he had been reprimanded and counseled for not completing classroom duties and responsibilities on time, and for not completing them at all.  He indicated that he had several unprovoked altercations with his co-workers and students, and that his relationship with his family had been seriously challenged over the previous year.  He reported that he was seriously involved with his church, but that he could not be as active as he would like to be because of his ongoing medical problems.  He noted that the medications he takes to sleep and function keep him mentally, chronically fatigued, and that he felt burnt out.  

On VA mental disorders examination in December 2007, the examiner noted the Veteran was unemployed after resigning from working as a teacher in May 2006, and then quitting his work as a file clerk in November 2007, after working for only 2 to 3 weeks.  The Veteran had a clinical history of being diagnosed with mood disorder, and depression secondary to general medical condition.  He had a history of psychiatric medications including Temazepam, Effexor, Depakote, Wellbutrin, Cyclobenzaprine and Butalbital.  He reported symptoms of insomnia, decreased energy, decreased interest, lack of socialization, chronic pain, and depressed mood; but denied symptoms of homicidal or suicidal ideation, auditory or visual hallucinations, paranoid thoughts, delusions, mania, obsessive compulsive disorder symptoms, or panic attacks.  He noted that he had to push himself to get his work done.  The Veteran described abruptly resigning from the file clerk position because he was unable to do the labor, including the sitting and standing that was required of his job.  He missed work and got behind financially, which caused severe distress.   The examiner noted the Veteran began to sob during his interview when talking about his family.  He reported that "walking itself [was] a victory every day."  The Veteran denied guilt feelings, and reported enjoying his children talking to his wife, and spending time cooking and playing with his children.  He noted that the only people he socialized with were his fellow church members, and that he did not like to go out even with them.  The Veteran indicated that he was able to bathe, eat, dress, and have independent living activities.  

The examiner noted that the frequency, severity and duration of the Veteran's symptoms of major depressive disorder were chronic and continuous, of moderate degree.  The Veteran reported that he lost time from work due to his psychiatric disability, but that he lost his file clerk job because of his migraines, aches, and body pain, and not due to his depression.  However, the examiner opined that due to the Veteran's chronic pain, insomnia and migraines, combined with his feelings of hopelessness, helplessness and lack of relief, his depression affected his employment functioning to a significant degree, and affected his social functioning outside of his family.  The examiner observed that there were no abnormalities in the Veteran's thought process and communication, and his behavior was appropriate.  Also, he was able to perform chores and carry out his independent living activities.  The examiner noted that the Veteran did not meet the criteria for schizophrenia, bipolar disorder, generalized anxiety disorder, panic disorder or obsessive compulsive disorder.  

On mental status examination, the examiner observed the Veteran was tense, anxious, had fair eye contact, was cooperative, had goal-directed speech, cried appropriately, and at times had restricted affect and depressed mood.  The Veteran did not have suicidal or homicidal ideation, auditory or visual hallucinations, paranoid thoughts, delusions, mania, or obsessive compulsive disorder symptoms.  He was characterized as alert and oriented times three, and was able to remember 2 out of 3 after 5 minutes.  His serials sevens were described as good.  The Veteran was diagnosed with major depressive disorder, chronic, continuous, without suicidal idea, of moderate degree, and he was assigned a GAF score of 55.  

A VA treatment record, dated in January 2008, reflects that the Veteran was treated by the psychiatric clinic during an unscheduled appointment.  He was described as alert, oriented times 4, and appropriately dressed and groomed.  He presented to the clinic requesting an excuse to be off work for the remainder of the week because he was experiencing anhedonia, and was having a lot of pain and discomfort.  He reported that he was unable to function at his job and did not know whether he would feel better the next day.  He indicated that he was usually able to function after a few days.  He reported his mood was dysphoric, but not depressed, and there was no evidence of imminent danger as evidenced by the absence of suicidal ideation, intent or plan.  He was assessed with an impression of depressive disorder related to general medical condition, currently functioning below baseline, but compliant on scheduled medicines, and was assigned a GAF score of 55.  

A VA mental health outpatient treatment note, dated in November 2008, indicates the Veteran reported that he was "doing fine," and denied feelings of hopelessness, helplessness, sadness, depression, anxiety, anhedonia, irritability or problems with sleep.  However, he noted that he dealt with his mental and physical condition on a daily basis.  He was diagnosed with a mood disorder related to general medical condition, and was assessed with an impression of "stable functioning at baseline, absent of target symptoms."  He was assigned a GAF score of 60 at that time.  

On VA mental health treatment in August 2009, the Veteran presented with a solemn mood after being seen for an unscheduled mental health outpatient clinic visit.  He was described as appropriately dressed and groomed, alert, and well oriented.  He reported that he was "doing the best that [he could], and that there were minimal changes in his target symptoms, and his psychosocial stressors were unchanged.  The Veteran reported feelings of hopelessness, helplessness, sadness and depression related to his medical issues.  He indicated that he was employed again as a school teacher because he could not afford to not work, but noted that he was having difficulty with his job attendance due to his physical health.  He was assessed with an impression of depressive symptoms stable, possible medication noncompliance, and no change in psychosocial stressors.  The Veteran was diagnosed with mood disorder related to general medical condition, and was assigned a GAF score of 60.  

In a statement received in September 2009, the Veteran reported that his service-connected headaches, stomach and back disabilities caused his major depressive disorder to flare up.  He noted that he was depressed because he could not sleep, and that his headaches during this stress caused him to "wanna give up."  

In December 2009, the Veteran appeared for a scheduled VA mental health clinic visit, during which he discussed being very busy, and denied feelings of hopelessness, helplessness, sadness, depression, anhedonia, anxiety, irritability or problems sleeping.  He described his functioning as "making it."  He was assessed with an impression of mood disorder related to general medical condition, and was assigned a GAF score of 60.  A VA addendum note, dated in May 2011, shows observations that the Veteran presented in tears, and was depressed and anxious.  The next day, the Veteran returned the clinic for an unscheduled visit, and presented as alert, well oriented, appropriately dressed and groomed, and cooperative with labile mood.  He reported that he was not honest during his last interview, and described having more symptoms than previously reported.  He indicated that he stopped taking his antidepressant medications, and noted that he experienced mood swings with frequent crying spells, anhedonia, and anxiety with a sad downtrodden mood on most days, difficulty interacting with his family, and barely functioning at work.  He reported that he would be unable to continue if the school year had not been drawing to a close.  He also noted that he was having difficulty admitting to himself that he had a mental health condition that was impeding his ability to function.  The Veteran denied suicidal ideations, plan or intent.  He was assessed with an impression of depressive symptoms with anxiety and panic attacks, and a GAF score of 50 was assigned.  A VA treatment record, dated later in May 2011, reveals the Veteran reported feeling anxious and depressed, but not suicidal.  He was referred to the mental health clinic for his depression at that time.  

When the Veteran returned for VA mental health treatment in June 2011, he reported that he was doing well, and indicated that he no longer intended to undergo mental health treatment.  He denied symptoms of panic disorder or depression, and noted that he was healed after God gave him the strength to function.  The Veteran was assessed with an impression of impaired insight and judgment with religiosity.  He was diagnosed with a mood disorder related to general medical condition by history, and with panic attack without agoraphobia.  He was assigned a GAF score of 60.  

On VA examination in December 2011, the examiner noted a history of treatment since 2003 for depression and for panic disorder without agoraphobia.  The Veteran indicated that he had been employed by the Mississippi Department of Agriculture, and then by the U.S. Postal Service after he was discharged from the military.  He was then employed since 2000 as a substitute teacher, and for the previous 4 years, was a physical education teacher.  The Veteran reported symptoms of anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment.  The examiner observed that a mental disorder had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning, or to require continuous medication.  The Veteran was diagnosed with panic disorder without agoraphobia, and was assigned a GAF score of 75.  The examiner explained that the Veteran experienced only 2 panic episodes, and his disorder was well-controlled with Klonopin such that his social and occupational functioning was not significantly impaired.  The examiner noted that the Veteran no longer exhibited significant symptoms of depression.  

While the Board finds the December 2011 VA examination report to be competent evidence of the current severity of the Veteran's psychiatric disability, the report fails to discuss the severity of his disability, historically, over the duration of the entire appeal period.  Thus, the Board accords this opinion little probative value as to the level of severity of the major depressive disorder prior to December 2011.  Instead, the Board accords more probative value to the numerous VA mental health treatment records that address the Veteran's disability on a more frequent and in depth basis.  

The Board finds the Veteran's testimony throughout the record to be competent and credible as there are no conflicting statements in the record nor is there any evidence suggesting the Veteran was untruthful or mistaken in his account of his psychiatric symptomatology.  See Buchanan v. Nicolson, 451 F.3d 1331 (Fed.Cir. 2006).  In fact, the record indicates the Veteran had admitted to under-reporting his symptoms and wishing to end his psychiatric treatment because he believed he was fine despite objective evidence to the contrary, which the Board takes as further proof of his truthfulness with regard to the severity of his psychiatric symptomatology.  Statements against interest tend to be highly reliable, which is why the Board accords more probative value to that admission.  Cf. generally Federal Rule of Evidence 804(b)(3); see also Del Rosario v. Peake, 22 Vet. App. 399, 408 (2009) ("[T]he logic of Rule 804(b)(3) of the Federal Rules of Evidence governing statements against interest appears to weigh in favor of the Board's reliance on such statements.").  

The Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).  

In this case, the Veteran has credibly reported a host of major depressive disorder symptoms and their resultant effects.  As indicated, the criteria of Diagnostic Code 9434 only provides examples and the Board may utilize any relevant factor which speaks to the issue of occupational or social impairment.  Mauerhan, 16 Vet. App. 436 (1992).  The Board has considered and analyzed all of the Veteran's symptoms in this analysis, and notes that the criterion allows for a schedular rating of 50 percent.  

While the December 2011 VA examiner opined that the symptoms of the Veteran's major depressive disorder were not severe enough to interfere with his occupational or social functioning, this opinion is clearly refuted by the record.  Throughout the duration of the appeal, the Veteran has repeatedly reported that his psychiatric disorder has interfered with his ability to remain employed.  As a teacher, he has described his fear of attacking a child because of his increased irritability related to his psychiatric disability.  He has also discussed instances of aggressing his co-workers and students in unprovoked attacks because of his psychiatric disability.  Also, he has reported that he had increased difficulty in concentrating, difficulty in making decisions, short-term memory impairment, mood swings, crying spells, and could barely make it to work, because of his psychiatric disability.  Additionally, he has characterized himself as someone who avoided going out and who had few friends because of his psychiatric disability.  Moreover, as recently as June 2011, the Veteran was assessed with an impression of impaired insight and judgment with religiosity after being noncompliant on his scheduled treatment routine and refusing further psychiatric treatment.  Overall, the Veteran's mental evaluations show that he has been found to have moderate to severe occupational and social impairment with reduced reliability and productivity, as evidenced by the GAF scores and the reported examination findings.  Accordingly, the Board finds that an initial 50 percent rating is warranted for the entire appeal period.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9434.  

The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).  

However, review of the record shows that, apart from descriptions of increased irritability and impulse control, the record does not establish that the service-connected major depressive disorder currently is, or ever has been, productive of a level of impairment that meets or even approaches that of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships.  In this regard, the Veteran has repeatedly denied experiencing any suicidal ideation, homicidal ideation, and obsessional rituals.    He has not been shown to have near-continuous panic or depression, and his ability to communicate has generally been described as good.  While he has apparently exhibited episodes of impaired impulse control and difficulty adapting to stressful circumstances, the Board finds that his symptomatology more nearly approximates that of reduced reliability and productivity, insofar as he has been able to maintain employment, and has been able to communicate effectively during his VA treatment and examinations.  The Veteran has maintained that he was capable of performing chores and taking care of his basic needs, and the record shows evidence that he was always well-groomed during his VA treatment.  He has also reported that he continues to have a good relationship with his wife and children, despite their displeasure with his occasional mood swings.  Thus, the criteria for an evaluation in excess of 50 percent have not been met under Diagnostic Code 9434.  Further, the criteria for staged rating are not met.  Fenderson, 12 Vet. App. 119, 125-26.  

Extraschedular Considerations

Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  

According to the regulation, an extraschedular rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2012).  

The Veteran has submitted no evidence showing that his service-connected migraines or major depressive disorder have markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that the migraines or major depressive disorder have necessitated any periods of hospitalization during the pendency of this appeal.  As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases.  See Thun v. Peake, 22 Vet. App. 111 (2008).  


ORDER

The appeal regarding the claim for entitlement to a TDIU is dismissed.  

A 50 percent rating for migraines, prior to January 26, 2012, is granted, subject to the regulations controlling disbursement of VA monetary benefits.  

A rating higher than 50 percent for migraines is not warranted during the pendency of the appeal. 

A rating of 50 percent for major depressive disorder, but no higher, is granted for the entire appeal period, subject to the regulations controlling disbursement of VA monetary benefits.  



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs