Citation Nr: 1315728 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 08-06 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 6, 2008. 2. Entitlement to an initial evaluation in excess of 70 for PTSD on or after August 6, 2008. 3. Entitlement to an initial evaluation in excess of 40 percent for a seizure disorder prior to June 11, 2012. 4. Entitlement to an initial evaluation in excess of 20 percent for a seizure disorder on or after June 11, 2012. 5. Entitlement to an initial evaluation in excess of 30 percent for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The Veteran had active service from January 1999 to April 2007. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for PTSD, a seizure disorder, and migraine headaches and assigned 30 percent, 10 percent, and noncompensable ratings, respectively, effective from April 26, 2007. During the pendency of the appeal, the RO issued a rating decision in December 2007 granting increased evaluations of 50 percent, 30 percent, and 20 percent for the Veteran's PTSD, seizure disorder, and migraine headaches, respectively, effective from April 26, 2007. In a May 2009 rating decision, the RO also increased the evaluation for PTSD to 70 percent as of August 6, 2008, and the evaluation for a seizure disorder was increased to 40 percent effective from April 26, 2007. Nevertheless, a claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issues remain on appeal. The Board notes that the RO issued a rating decision in July 2012 in which the evaluation for the Veteran's seizure disorder was reduced to 20 percent as of June 11, 2012. In that decision, the RO specifically indicated that the action was taken immediately because the reduction did not change the Veteran's total or combined service-connected evaluation and did not reduce his benefit payments. The regulations do provide certain procedural protections before a reduction can be effectuated, but those provisions only apply where a change in disability or employability warrants a reduction or discontinuance of pension payments currently being paid. 38 C.F.R. § 3.105(f). In addition, the Veteran has not filed a notice of disagreement with the July 2012 rating decision. Thus, the issue of the propriety of the reduction is not currently before the Board. Accordingly, the Board has instead characterized the higher initial evaluation issue as staged ratings. The Board also observes that the Veteran has asserted that he is unemployable due to his service-connected disabilities. The Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the RO granted entitlement to TDIU in a July 2012 rating decision, and the Veteran has not filed a notice of disagreement with the effective date of that grant. Thus, the Board finds that there is no issue regarding TDIU that is for consideration at this time. The Virtual VA paperless claims processing system contains VA treatment records dated between June 2007 and July 2012, as well as records from the Social Security Administration (SSA), which are pertinent to the Veteran's claims. These records have been reviewed and considered in the decision below. FINDINGS OF FACT 1. For the period from April 26, 2007, to August 6, 2008, the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. Throughout the appeal period, the Veteran's PTSD has not been productive of total occupational and social impairment. 3. Prior to June 11, 2012, the Veteran did not have, on average, at least one major seizure in four months over the course of a year or nine to ten minor seizures per week. 4. Since June 11, 2012, the Veteran has not had at least one major seizure in the last six months or two in the last year, or been averaging at least five to eight minor seizures weekly. 5. The Veteran has not been shown to have migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent evaluation for PTSD have been met for the period from April 26, 2007, to August 6, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2012). 2. The criteria an initial evaluation in excess of 70 percent for PTSD have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for an initial evaluation in excess of 40 percent for a seizure disorder prior to June 11, 2012, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a Diagnostic Code 8911 (2012). 4. The criteria for an initial evaluation in excess of 20 percent for a seizure disorder on or after June 11, 2012, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a Diagnostic Code 8911 (2012). 5. The criteria for an initial evaluation in excess of 30 percent for migraine headaches have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2010); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a) (West 2002); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran in this case is challenging the initial evaluations assigned following the grant of service connection for PTSD, a seizure disorder, and migraine headaches. The RO provided the appellant complete pre-adjudication notice in a letter dated in May 2007, which substantially complied with the notice requirements for service connection claims. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. In any event, the record reflects that the appellant was provided a statement of the case in February 2011, which advised him of the applicable law and criteria required for higher ratings for the disabilities on appeal, and he demonstrated his actual knowledge of what was required to substantiate higher ratings in numerous written statements to VA, including arguments contained in his substantive appeal. Moreover, the record shows that the appellant was represented throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that the appellant had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In addition, VA has assisted the appellant in obtaining evidence, afforded him VA examinations, and obtained adequate medical opinions as to the severity of the claimed disabilities. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA treatment records and examination reports, Social Security Administration (SSA) records, and the Veteran's statements. All known and available records relevant to the issues on appeal have been obtained and associated with the claims file; and the Veteran and his representative have not contended otherwise. The Veteran was afforded VA examinations in July 2007, March 2008, April 2008, December 2008, January 2010, June 2010, and June 2012. The Board finds that the VA examinations in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on examinations and fully address the rating criteria that are relevant to rating the disabilities in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disabilities since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist the Veteran has been met in this regard. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements, and the appellant is not prejudiced by a decision on the claim at this time. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole- recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture presented more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. PTSD Excluding a temporary total evaluation from March 22, 2011, to June 1, 2011, the Veteran's PTSD has been assigned a 50 percent evaluation effective from April 26, 2007, and a 70 percent evaluation as of August 6, 2008, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. PTSD is rated under the provisions of 38 C.F.R. § 4.130, which incorporates the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Under the provisions of Diagnostic Code 9411, a 10 percent disability evaluation is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, when symptoms are controlled by continuous medication. A 30 percent evaluation is contemplated 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is for assignment when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability evaluation is contemplated 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when there is evidence of 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. Considerations in evaluating a mental disorder include the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The 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. Id. In applying the above criteria, the Board also notes that in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to service-connected condition. In Vazquez-Claudio v. Shinseki, __ F.3d ___, No. 2012-7114 (Fed.Cir. April 8, 2013), the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In this case, the Veteran was afforded a VA mental health evaluation in July 2007 during which the examiner reviewed the claims file. The Veteran reported that he felt depressed and anxious most of the time without significant periods of relief. He stated that he experienced nightmares and thoughts about his experiences in service. He also indicated that he had no friends and that his only interpersonal connection was with his mother. On examination, the Veteran's speech was slightly rambling, but it was otherwise within normal limits. He was oriented, and his thought processes were grossly intact with no evidence or report of hallucinations or delusions. The Veteran stated that he would be relieved to die, but he had no specific plan to harm himself. His attention and concentration were slightly impaired, but his judgment, insight, and memory function were intact. The Veteran also described symptoms of nightmares, intrusive thoughts, avoidance behaviors, and hyperarousal. The examiner diagnosed PTSD secondary to combat exposure and assigned a Global Assessment of Functioning (GAF) score of 55. The Veteran was also afforded a VA examination in March 2008 during which he reported that he was having difficulty in his marriage, that he was no longer working, and that he spent a lot of time at home alone. He stated that he had been in individual therapy for several months and was taking three psychiatric medications. The Veteran reported feelings of frustration and said that he had become intoxicated "a couple of times" since his last examination. He indicated that he had difficulty with complex tasks in his previous employment, as well as "serious problems" with his supervisors. He reported that his only close relationship was with his son and noted that he had no leisure activities. He stated that he had symptoms of depressed mood, anxiety, nightmares and intrusive thoughts of combat, avoidance, and feelings of detachment from others. On examination, the Veteran was alert, oriented, and cooperative throughout the interview with minimal eye contact but normal speech. He described his mood as "numb," and his affect was appropriate to content. The Veteran's thought process was linear and goal-directed, and his judgment and insight were good. There was no evidence of a thought disorder, hallucinations, or suicidal or homicidal ideation. The Veteran stated that he no longer made plans to kill himself, but indicated that he "wouldn't mind" if something happened to him. The examiner diagnosed him with PTSD and assigned a GAF of 50. He noted that the Veteran's symptoms did not appear worse than during his prior examination, although there was increased occupational impairment and social isolation. VA treatment records reflect that the Veteran was admitted for inpatient treatment in August 2008 after he reported ongoing suicidal thoughts. He was discharged about three weeks later, but was then readmitted for another week. The Veteran was diagnosed with PTSD and recurrent major depression. His GAF was assessed as 44 at admission and 56 when he was discharged. The Veteran was subsequently afforded a VA mental health evaluation in December 2008 during which the examiner reviewed the claims file and noted the Veteran's history of hospitalizations for psychiatric treatment. The Veteran described frequent nightmares related to combat as well as "survivor guilt," depressed mood, and social avoidance. He used a variety of medications for treatment with little relief of his symptoms. The Veteran also reported having low energy, hypervigilance including exaggerated startle response, and feelings of hopelessness about the future. He stated that he had lost his last job as a body piercer because he worked too slowly and indicated that his marriage was troubled. He reported that he had only one friend whom he visited occasionally, and his only interests were occasional computer games. The Veteran denied using alcohol or drugs since his last examination. There was no history of violence, but he continued to endorse suicidal ideation. On examination, the examiner found no evidence of impaired thought processes or communication, nor was there any evidence of delusions, hallucinations, or psychosis. The Veteran did not display any inappropriate behavior. He was oriented in all spheres, and there was no impairment in memory, attention, or concentration; however, the examiner noted that the Veteran's "impaired concentration results in some inefficiency in his job." The Veteran's speech was normal, and he did not experience panic attacks. The examiner diagnosed the Veteran with chronic PTSD with features of depression and documented his GAF score as being 50. Records from the Social Security Administration (SSA) reflect that the Veteran underwent a psychiatric evaluation in November 2009, during which PTSD and major depressive disorder were diagnosed. His symptoms included recurrent panic attacks, avoidance, hypervigilance, flashbacks, irritability, and chronic problems getting along with others. His GAF score was 50. The Veteran was afforded another VA mental health evaluation in January 2010 during which examiner reviewed the claims file. The Veteran reported that his marriage was "bumpy," but he had a good relationship with his son. On examination, the Veteran was oriented, and there was no impairment of thought processes or speech. His judgment was normal, and he had no delusions, hallucinations, or suicidal or homicidal ideations. The Veteran's remote memory was normal, but his short-term memory was moderately impaired, and he was easily distracted. The examiner stated that the Veteran had high anxiety related to his seizure disorder, as well as sleep disturbance, nightmares, and intrusive thoughts of service. The examiner diagnosed chronic PTSD and assessed his GAF score as 50. She also opined that his PTSD symptoms were negatively affecting his ability to maintain employment. VA treatment records reflect that the Veteran was admitted for psychiatric treatment between March 22, 2011, and May 13, 2011. He reported having symptoms of intrusive thoughts, nightmares, hypervigilance, irritability, suicidal ideation, and avoidance. The Veteran also described anxiety, insomnia, anhedonia, and occasional depression. At discharge, his GAF was assessed as 55. A temporary total rating was assigned for the period of VA hospitalization. See 38 C.F.R. § 4.29. The Veteran was afforded a VA mental health examination in June 2012 during which the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran was divorced and lived with his girlfriend and two daughters. He had not worked for the last two years and stated that he could not tolerate any situation that requires supervision because of difficulty trusting authority. He was then taking only one psychotropic medication. The Veteran's reported symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. He also reported difficulty in establishing and maintaining effective relationships and in adapting to stressful circumstances, including work. During the examination, the Veteran's thought processes showed linear associations and no psychotic features were present. His mood was tense and self-critical, and he expressed frustration with his difficulty interacting with others. He affect was full range, and he showed good insight about his problematic behaviors. He particularly noted continuing hypervigilance and startle response. The examiner commented that the Veteran felt pervasively intolerant of people and noted that his inability to tolerate social life would significantly impact his ability to obtain and maintain gainful employment. He assessed the Veteran's GAF as 48. After carefully reviewing the relevant evidence, the Board finds that a 70 percent rating is warranted for PTSD for the entire rating period on appeal. The evidence reflects that the Veteran's symptoms include near continuous depressed mood, suicidal ideation, impaired concentration, difficulty adapting to stressful situations, and an inability to establish and maintain effective relationships. These symptoms have been noted to cause occupational and social impairment with deficiencies in most areas, particularly in his work and family relations and are thus consistent with the criteria for a 70 percent rating. 38 C.F.R. § 4.130. Moreover, the Veteran's PTSD symptoms, as documented by multiple examiners, have been largely unchanged throughout the rating period. Hence, the Board finds that a 70 percent rating for PTSD is warranted throughout the rating period. The Board has also considered whether the Veteran is entitled to an initial evaluation in excess of 70 percent at any point during the appeal period. As noted above, a 100 percent evaluation is warranted when there is evidence of 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. The Board notes that the Veteran's current symptoms, such as continuous depression, anxiety, suicidal ideation, sleep impairment, disturbances of mood, difficulty in adapting to stressful circumstances, and short-term memory loss, are already contemplated in the rating criteria for 30 percent, 50 percent, and 70 percent evaluations. Moreover, the aforementioned evidence demonstrates that the Veteran is oriented and has normal speech, thought processes, judgment, and insight. There is no evidence of any delusions, hallucinations, homicidal ideation, violence, or psychotic features. His remote memory is also normal, and the January 2010 VA examiner indicated that his short-term memory is only moderately impaired. Additionally, there is no evidence grossly inappropriate behavior or an inability to perform the activities of daily living There is no doubt that the Veteran has occupational and social impairment, but the evidence does not show that he has total social impairment. In this regard, he has reported having a relationship with his mother and son, and during the December 2008 VA examination, he indicated that he had one friend that he visited occasionally. Although he did divorce during the pendency of the appeal, the June 2012 VA examiner noted that the Veteran was living with his girlfriend and two daughters. Such relationships do not suggest that the Veteran has total social impairment. Moreover, while the examiners have indicated that the Veteran's PTSD has a significant impact on his occupation, they have not stated that he has total occupational impairment as a result of his disability. In fact, in July 2009, the Veteran indicated that his migraine headaches actually led to his termination from employment, and SSA records reveal that he reported volunteering at a VA hospital. In addition, the June 2012 VA examiner indicated that he might be able to work in an unstructured environment requiring minimal supervision or contact with the public. In addition, the Board notes that the Veteran was granted TDIU based on the combined effect of his service-connected disabilities, rather than due to his PTSD alone. Thus, while the Veteran clearly has occupational impairment as a result of his PTSD, the preponderance of the evidence shows that it is not total in nature. In addition, the June 2012 VA examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. Such a finding is consistent with the rating criteria for a 70 percent evaluation. After considering the evidence of record, the Veteran's symptoms more closely approximate the criteria for the currently assigned 70 percent disability rating throughout the appeal period. Overall, the Veteran has not demonstrated symptomatology suggestive of a 100 percent rating, nor have his symptoms resulted in total occupational and social functioning, as required for a 100 percent evaluation. Mauerhan, supra, Vazquez-Claudio, supra. Thus, the criteria for the next higher rating of 100 percent have not been met or approximated for any period in this appeal. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board does observe that the Veteran has been assigned a Global Assessment of Functioning (GAF) score between 44 and 55. A GAF score ranging from 41 to 50 is contemplated for serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning. A GAF score between 51 and 60 reflects moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. See 38 C.F.R. §§ 4.125, 4.130 (incorporating the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, of the American Psychiatric Association in the rating schedule). While the Board has considered the degree of functioning as evidenced by these reported scale scores, they are but one factor for consideration in assigning a rating in this case. As outlined above, the Board finds that when all of the evidence and findings contained therein are considered, including the degree of functioning as evidenced by these reported scales, the Board concludes that the Veteran has not been shown to have total occupational and social impairment. Accordingly, the Board finds that the schedular criteria for the next higher 100 percent disability evaluation have not been met. Therefore, the Board finds that the preponderance of evidence is against an initial evaluation in excess of 70 percent for PTSD. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected PTSD is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which includes anxiety, depressed mood, sleep impairment, hyperarousal, avoidance behaviors, hypervigilance, irritability, and suicidal ideation. Indeed, the 70 percent evaluation contemplates the overall effect of all of his symptomatology on his occupational and social functioning. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected PTSD under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). The temporary 100 percent rating assigned between March 22 and May 31, 2011, due to VA hospitalization is unchanged by this decision. Seizure Disorder The Veteran's seizure disorder is currently assigned a 40 percent evaluation effective from April 26, 2007, and a 20 percent evaluation as of June 11, 2012, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8911. Under that diagnostic code, a 10 percent evaluation is assigned for a conformed diagnosis of epilepsy with a history of seizures. A 20 percent evaluation is warranted for at least one major seizure in the last two years, or at least two minor seizures in the last six months. A 40 percent evaluation is contemplated for 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 evaluation is 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 is warranted when on average there is 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. A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1). 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 (2). In this case, the Veteran was afforded a VA evaluation in April 2008 during which the examiner reviewed the claims file and noted the Veteran's history of three seizures. An MRI of his brain in service was normal, but an EEG showed some slowing on the left temporal area. The Veteran was taking medication to control the seizures, and he had not experienced any since March 2007. There were no objective findings on examination, but the examiner noted that an EEG of August 2007 showed a high amount of high voltage beta activity, which was likely the result of sedative medication. The scan was otherwise normal, and no epileptiform discharges or abnormal slowing were seen. The examiner diagnosed the Veteran with a seizure disorder. In an October 2008 letter to VA, the Veteran reported that he had experienced a seizure in August 2008 for which he was treated in the emergency room. He stated that he had stopped driving motor vehicles as a result of that incident and was unable to find a job. A private hospital record dated in August 2008 indicated that the Veteran had been seen for a recurrent seizure. The Veteran was afforded a VA epilepsy examination in December 2008 during which the examiner reviewed the record and noted that the Veteran had not had a seizure since August 2008. The Veteran was taking medication twice a day, which provided relief and had no side effects. The seizures had no effect on his activities of daily living, although he was unable to drive and could not find employment due to his history of seizures. There were no objective findings on examination, but the examiner diagnosed him with a seizure disorder. VA treatment records dated in May 2009 indicate that the Veteran denied any seizures since August 2008. VA outpatient treatment records indicate that the Veteran later received emergency treatment for a seizure, which occurred in his home in September 2009. SSA records reflect that the Veteran underwent an examination in November 2009 during which a seizure disorder was diagnosed. The examiner noted that the last seizure had taken place in August 2009 and was marked by convulsions lasting about one minute. The examiner stated that control was generally good with medication; however there were some breakthrough seizures and the Veteran was unable to drive. The Veteran also had difficulty obtaining employment due to his seizure disorder. The Veteran was afforded a VA general medical evaluation in January 2010. The examiner reviewed the record and noted the Veteran's history of seizure disorder with normal EEG and MRI and good control with medication. The examiner observed that the Veteran was not able to work, as he was restricted from operating heavy equipment within one year of a seizure. During a VA examination in June 2010, the examiner noted that the Veteran's last seizure had occurred in September 2009. He stated that the seizure disorder was currently controlled with medication. During a VA examination in June 2012, the examiner noted that the Veteran had been diagnosed with clonic-tonic seizure disorder and had last experienced a seizure in December 2010. The examiner noted that the Veteran would be unable to work in any job requiring commercial driving, operating heavy machinery, or working at heights. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a higher initial evaluation for his seizure disorder. In particular, the Board finds that an evaluation in excess of 40 percent is not warranted prior to June 11, 2012. The Veteran did not have, on average, at least one major seizure in four months over the course of a year or nine to ten minor seizures per week. Since April 26, 2007, he experienced no more than one major seizure per year, as he had one in August 2008, one in September 2009, and one in December 2010. There is no indication that he had any seizure between December 2010 and June 2012. In fact, the June 2012 VA examiner specifically noted that the Veteran's last seizure occurred in December 2010. Thus, the Veteran has not been shown to have met the criteria for an initial evaluation in excess of 40 percent at any point from April 26, 2007, to June 11, 2012. The Board also finds that the Veteran is not entitled an evaluation in excess of 20 percent for his seizure disorder at any point since June 11, 2012. The evidence does not show that he has had at least one major seizure in the last six months or two in the last year, or that he averaged at least five to eight minor seizures weekly. As previously noted, the record reflects that the Veteran's last major seizure occurred in December 2010. The currently assigned 20 percent rating contemplates at least one major seizure in the last two years. 38 C.F.R. § 4.124a, Diagnostic Code 8911. Thus, the Veteran has not been shown to have met the criteria for an initial evaluation in excess of 20 percent on or after June 11, 2012. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected seizure disorder is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. In fact, there is no indication in the record or by the Veteran that has experienced any seizures since December 2010. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected seizure disorder under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). Migraine Headaches The Veteran is currently assigned a 30 percent disability evaluation for migraine headaches, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Under that diagnostic code, a 10 percent disability evaluation is assigned when there are headaches with characteristic prostrating attacks averaging one in two months over last several months. A 30 percent disability evaluation is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent disability evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic adaptability. In this case, the Veteran was afforded a VA general medical examination in July 2007 during which he reported that he had developed migraine headaches while on active duty in 2001 and that he still experienced them three to five times per month. He noted that the headaches develop and remain in the frontal area and that he experiences a hazing feeling consistent with an aura just prior to onset of a headache. The Veteran stated that the headaches last from six hours to one day and occasionally produce nausea and emesis. He also described photophobia and phonophobia and stated that he is unable to function during one-third of the headaches. The examiner diagnosed him with migraine headaches. The Veteran was afforded another VA examination in April 2008 during which the examiner reviewed the claims file and noted that the headaches began in 2000 and occurred three to five times per month. The Veteran reported that the headaches were aggravated by bright light and loud noise and were alleviated by staying in a dark room and sleep. He used medication to treat his headaches. The Veteran reported that the pain was typically eight or nine out of ten and lasted for one to two days. He stated that he had been absent from work due to headaches five to six times per month between November 2007 and February 2008, when he became unemployed. He reported that the headaches were prostrating and that he could not do anything when affected. The Veteran was subsequently afforded a VA neurological evaluation in December 2008 during which he reported that he still experienced headaches three to five times per month and had aura, photophobia, and phonophobia. He reported that the headaches last between six hours and two days and were occasionally accompanied by nausea and emesis. The Veteran noted that he was able to function during one-third of the headaches if he could take his medication in time to stop the progression of the pain. He was unable to function two-thirds of the time if he could not take his medication. The Veteran used both daily and as-needed medications. SSA records reflect that the Veteran underwent an examination in November 2009 at which time migraine headaches were diagnosed. The examiner noted that the headaches occurred once or twice a week and caused incapacitation. He stated that the Veteran had lost a job earlier that year due to frequent headaches. The Veteran was afforded a VA evaluation in January 2010. The examiner reviewed the record and noted that the Veteran used two medications for his headaches with moderate relief. The Veteran reported having four to five headaches per month, which lasted half a day. There were no effects on his daily activities. During a VA examination in June 2012, the Veteran indicated that his headaches were relieved with marijuana. He reported experiencing headaches on an average of one to two times per week and stated that two per month were incapacitating. His indicated that his headaches were always bifrontal/biparietal/periorbital, stabbing/piercing, and associated with nausea, photophobia, and phonophobia. Applying the rating criteria to the above evidence, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's migraine headaches. Although he has reported having three to five headaches per month, the Veteran has stated that only one- or two-thirds of his migraine headaches rendered him unable to function, which would indicate one or two debilitating headaches per month. Moreover, he told the December 2008 VA examiner that he was able to function more if he took his medications in time, and at the June 2012 VA examination, the Veteran stated that he had only two incapacitating headaches per month. In addition, he told the July 2007 and December 2008 VA examiners that the headaches only produced nausea and emesis occasionally, and the January 2010 VA examiner noted that there were no effects on his daily activities. The Board finds that this level of disability does not constitute very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, a disability rating in excess of 30 percent rating for migraine headaches is not warranted for any part of the rating period. See 38 C.F.R. § 4.124a, Diagnostic Code 8100. In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1). However, in this case, the Board finds that the record does not show that the Veteran's service-connected migraine headaches are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including the frequency and severity of his headaches. As discussed above, there are higher ratings available under the diagnostic code, but the Veteran's disability is not productive of such manifestations. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected migraine headaches under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Subject to the provisions governing the award of monetary benefits, an initial 70 percent evaluation is granted for PTSD for the period from April 26, 2007, to August 6, 2008. An initial evaluation in excess of 70 percent for PTSD is denied for the entire appeal period. An initial evaluation in excess of 40 percent for a seizure disorder prior to June 11, 2012, is denied. An initial evaluation in excess of 20 percent for a seizure disorder on or after June 11, 2012, is denied. An initial evaluation in excess of 30 percent for migraine headaches is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs