Citation Nr: 1315487 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 12-11 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with panic disorder, psychotic disorder, and obsessive-compulsive disorder (hereinafter "PTSD"). 2. Entitlement to an initial compensable rating for the service-connected headaches, tension type (hereinafter "headaches"). ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1978 to May 1984. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO, in pertinent part awarded service connection for PTSD (50%) and tension type headaches (noncompensable) effective May 2010. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Affording the Veteran all reasonable doubt, throughout the appellate period, the Veteran's PTSD has been shown to be productive of total social and occupational impairment. 2. Throughout the appellate period, the Veteran's headaches have not been shown to be productive of characteristic prostrating attacks averaging one in two months over the last several months. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial 100 percent rating for the service-connected PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.130, including Diagnostic Code 9411 (2012). 2. The criteria for the assignment of an initial compensable rating for the service-connected headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4. 124a, including Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in June 2010. This appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection for PTSD and headaches. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claims, which is not abrogated by the granting of service connection. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which she declined. In a November 2011 report of contact, the Veteran informed VA that records from her private provider (Dr. P) were not needed to support her claims. She indicated that she wished to have her appeal decided without additional medical evidence. The Board notes that treatment notes from Dr. P of Triangle Community Physicians are already of record having previously provided by the Veteran, to include in October 2011. A remand is not necessary to obtain any additional records. 38 C.F.R. § 3.159(c)(1). In February 2013, the Veteran submitted additional evidence in support of her motion to advance on docket. This is not pertinent to the claims on appeal. The Veteran did submit additional evidence in support of her claim for individual unemployability and increase, which was not considered by the RO; however, given the favorable decision in the instant decision, there is no prejudice to the Veteran. 38 C.F.R. § 20.1304(c). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where 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 on the basis of the criteria set forth in this paragraph an extra-schedular 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). PTSD The service-connected PTSD disability has been assigned an initial 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the applicable criteria, a 50 percent disability evaluation is assigned under the general rating formula for mental disorders where the evidence shows occupational and social impairment 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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. Id. When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms, but it must also make findings as to "how those symptoms impact[ ]" the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed.Cir. 2013); see Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because "use of the term 'such as' [in the rating criteria] demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list," "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004). However, because "[a]ll non-zero disability levels [in § 4.130] are also associated with objectively observable symptomatology" and the plain language of the regulation makes it clear that "the Veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 112. Having carefully considered all the evidence of record in light of the pertinent law and regulations, the Board finds that an initial 100 percent rating is warranted. 38 C.F.R. § 4.7. The pertinent evidence is as follows. In July 2010 the Veteran's treatment provider from Psychological Consulting Services assigned the Veteran a Global Assessment of Functioning Scale Score (GAF) of 37, which according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), was indicative of some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, and thinking or mood. This was based on complaints of trouble sleeping, social isolation, difficulty trusting people, easily startled by loud noise, irritability, anxiety, mood swings, decreased energy, crying spells, and problems with concentration. Her provider indicated that her PTSD interfered significantly in her personal, social, and professional life. Her affective instability and lack of concentration undermined her ability to learn new tasks or be consistently productive. Due to her hypervigilance she was severely compromised in her ability to initiate or sustain work relationships. Due to her mood swings and isolating behaviors she was also severely compromised in her ability to sustain social relationships. Her prognosis was considered poor. The provider opined that she was permanently and totally disabled and unemployable. Upon VA examination in March 2011, the Veteran indicated she avoided crowds. The week prior to examination she cut herself with a metal can lid because she saw a television program about self-harm and wondered how it would feel to cut herself. She had obsessive-compulsive behaviors, to included repeatedly checking her blood pressure during the day, checking door knobs, locks, and stove knobs, and twice weekly left work to return home to check on items she thinks she may have left unlocked or plugged in. Her husband had to call her upon reaching work or she was struck with fear that he was in an accident. She would call her adult daughter and if she did not answer, she would drive to her home to ensure that she was not ill or injured. She showered two to four times daily and repeatedly washed her hands. She refolded laundry after her husband folded it to ensure it was done right. She endorsed episodes characterized by palpitations, feeling flushed or warm, paresthesias, intense anxiety, fear that she was seriously ill or losing her mind, dyspnea, and nausea. She sometimes vomited with these episodes. These episodes interfered with her work, and caused her to leave work and return home. These occurred four to five times per week. Panic attacks affected her daily, to include once while at a comedy show, at her daughters high school performance, and at work. The Veteran further complained of nightmares, falling asleep at work, and napping in her car while at work approximately three times per week. She avoided thoughts of her military service, to include her friend's death and the sexual harassment. She was not comfortable around males when they were physically close to her. She was uncertain about her future, overly concerned about medical problems, and thought frequently about death. She felt remote and distant from her husband. She reported hypervigilance, and poor concentration. She had received verbal warnings at work due to her poor performance. She worried that she would make a mistake at work and adversely affect other people, which caused her panic. Mental status examination revealed delusions, to include thinking that her insurance carrier and physician were working together to keep her from the most effective medication so her condition would worsen and she would need more medical care. She thought people at work were talking behind her back. She had occasional auditory hallucinations one to two times per week of other voices talking negatively about her. She also reported possible visual hallucinations as misperceiving a tree as a man standing next to the road. Her insight was poor to fair and her judgment was fair. She denied present homicidal or suicidal ideations. She was unable to complete tasks because of impaired concentration. She was too anxious to do the grocery shopping. She avoided travel. She could not drive in a tunnel or over a bridge. If her husband was driving, she would lie on the car floor until the bridge or tunnel was past. She did not participate in recreational activities. The Veteran was diagnosed with PTSD, obsessive-compulsive disorder (OCD), panic disorder, and psychotic disorder. She was assigned a GAF score of 51 indicative of moderate symptoms. The examiner indicated there was no method to relate her symptoms and/or GAF score to any single disorder, as they were mutually reinforcing. Records from Triangle Community Physicians reveal the Veteran was receiving short-term disability. She had been out of work since the beginning of May 2011 as a result of her PTSD and depressive symptoms. She remained out of work in June 2011 and July 2011. VA outpatient treatment records dated in May 2011 show the Veteran was not able to leave her home comfortably without her husband. She had flashbacks and increasing checking behaviors. She was currently counting to three whether opening the door or turning the faucets, and if interrupted started all over again. She was unable to tolerate crowds or loud noise. She felt comfortable only in her own home. She had constant fear that something would happen to her husband or daughter and called them several times a day when they were not home. She had mild paranoia and daily auditory hallucinations. Insight was poor. She was assigned a GAF of 47 for serious symptoms or serious impairment in social or occupational functioning. In August 2011, the Veteran's treatment provider from Psychological Consulting Services again assigned the Veteran a GAF of 37 indicative of some impairment in reality testing or major impairment in several areas such as work, family relations, judgment, thinking, or mood. The provider indicated that the Veteran's PTSD and depressive symptoms continued to interfere significantly in all aspects of her life. She had become so uncomfortable being around other people that she had to take a leave of absence from her job. She was very uncomfortable leaving her house. She had begun obsessive checking behaviors before leaving the house. She got panicky when her husband left the house and called him constantly needing reassurance that he was safe. She had become increasingly irritable. She had nightmares. She felt increasingly hopeless and helpless about managing her symptoms. The provider considered her totally and permanently disabled. A June 2012 letter from Psychological Consulting Services reveals the Veteran was very anxious. She complained of shortness of breath, chest pains and headaches consistent with her anxiety disorder. She suffered from hypervigilance, hyperirritability, sleep disturbance and problems with memory and concentration. The provider discussed the Veteran taking time off from work because her symptoms were so severe and disruptive to all areas of her life. She was taking a leave of absence to the end of July. In July 2012, the Veteran's house burned. As a result of the fire, she had to find a new home and was very anxious about a new living environment. She complained of increasing heart palpitations and coughing. She broke out in hives. She reported being more reluctant to go out. Her husband had to do the shopping. She obsessed about her husband's safety. She displayed signs of depression including lethargy, sadness, desire to isolate herself, and feelings of helplessness. When she thought about returning to work, her anxiety level rose. She had her leave of absence extended until mid August 2012. In January 2013, the Veteran received a warning at work regarding efficiency and productivity. She had panic and anxiety attacks more frequent. She was less able to handle work stressors. In February 2013, the Veteran informed her provider that she was terminated from work. In a statement from the Veteran dated in February 2013, she indicated that she could not perform the essential functions of her duties based on the reasonable accommodation request submitted by her therapist. She also indicated that she applied for Social Security Disability. Based on the evidence delineated above, and affording the Veteran all reasonable doubt, an initial 100 percent evaluation is warranted. While some of the symptoms experienced by the Veteran (including lack of concentration, hypervigilance, obsessive-compulsive behaviors, daily panic attacks, relationship difficulties, delusions and auditory and visual hallucinations) approximate those listed in the 100 percent criteria, the Board finds that, overall, the symptoms experienced by the Veteran are of similar duration, frequency, and severity as those described for the 100 percent rating, for the entire appeal period. While there was some discrepancy in the GAF scores assigned by VA and her private provider regarding the severity of her symptoms, it is clear that overall, the objective findings paint a disability picture more consistent with PTSD productive of total social and occupational impairment. 38 C.F.R. § 4.119; See Fenderson, 12 Vet. App. at 126. Her claim is granted in full. Headaches The service-connected headache disability has been rated by analogy and assigned an initial noncompensable rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100. 38 C.F.R. § 4.20. Under the applicable criteria, a noncompensable disability evaluation is assigned for migraines with less frequent attacks. 38 C.F.R. § 4.124a. A 10 percent is assigned for migraines with characteristic prostrating attacks averaging one in two months over the last several months. Id. A 30 percent is assigned for migraine with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 50 percent is assigned for migraine with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Having carefully considered all the evidence of record in light of the pertinent law and regulations, the Board finds that an initial compensable rating is not warranted. 38 C.F.R. § 4.7. The pertinent evidence is as follows. Records from Triangle Community Physicians dated between 2006 and 2010 were negative for complaints or treatment of headaches. Notably, in July 2006 and August 2006, the Veteran denied headaches. Upon VA examination in March 2011, the Veteran indicated that she only got headaches after she began feeling stressed or anxious. Headaches were said to occur bilaterally in frontal to temporal areas. She described her headaches as pressure and feeling that someone was squeezing her head. She randomly felt a sharp nerve pain on the side of her head. Her vision was occasionally felt to be glazed over. She denied loss of vision. She indicated that she had them daily. The alleviating factors were treating/resolution of anxiety and distraction from anxiety. She also took Aleve. She reported mild to moderate decrease in function during headaches. Her neurologic, sensory, reflexes, cranial nerves, and cerebellar testing examinations were all normal. Headaches were felt to be tension type. VA outpatient treatment records dated in February 2011 show the Veteran reported only occasional headaches. There are no other complaints of headaches in the record. In sum, there has been no objective evidence of characteristic prostrating attacks of headaches averaging one in two months over the last several months to warrant an increased 10 percent rating. While the Veteran endorsed daily headaches during her VA examination in March 2011, this is contradicted by the objective medical evidence of record, to include the February 2011 treatment notes revealing that headaches occurred only occasionally. Staged" ratings are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, she may be assigned a higher rating. See 38 C.F.R. § 4.1. Extraschedular and Individual Unemployability Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to the PTSD and headache disabilities fall within the schedular criteria. As delineated above, the Veteran has been awarded a 100 percent evaluation for her service-connected PTSD. The rating criteria contemplates a higher rating for headaches, but as explained above, the evidence does not show that the Veteran has manifestations of the headache disability that are not contemplated by the rating criteria. Her disability is manifested by daily headaches that are relieved by treating or resolving anxiety, without any underlying neurologic or sensory problems. The rating criteria contemplates the frequency of attacks. See Diagnostic Code 8100. Her disability has been rated by analogy. The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran has raised a claim for TDIU. See Request to Advance on Docket dated February 28, 2013. However, as an initial 100 percent evaluation for the service-connected PTSD has been awarded in the instant decision, the request for TDIU is rendered moot. Hence, further consideration of TDIU is not warranted. ORDER Entitlement to an initial 100 percent evaluation for the service-connected PTSD is granted subject to the controlling regulations governing monetary awards. Entitlement to an initial compensable evaluation for the service-connected headaches is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs