Citation Nr: 1317190 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-01 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 30 percent prior to June 25, 2012 and in excess of 50 percent as of June 25, 2012 for anxiety reaction with headaches. ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to April 1971. His decorations include the Combat Infantryman's Badge and the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to a rating in excess of 30 percent for anxiety reaction with headaches. A timely appeal was noted from that decision. In May 2010, and again in May 2012 this matter was remanded for additional development. Such has been completed and this matter is returned to the Board for further consideration. A November 2012 decision assigned a 50 percent rating for the psychiatric disorder effective June 25, 2012. This grant did not represent a total grant of benefits sought on appeal for this issue, and the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board has characterized the issue to reflect the staged increase. In addition, the Board notes 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 a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not specifically raised the issue of entitlement to a TDIU as a result of his psychiatric disability. See 38 C.F.R. § 4.16. The psychiatric examinations for the most part have revealed some industrial impairment, but have not suggested that this is total. In May 2012 the Veteran submitted a 'Notification of Personnel Action' dated on July 27, 2011 which reflects that the Veteran resigned from his full-time employment "due to my recurring medical conditions with my knees and shoulder that has been interfering with my work." However, the most recent VA examination report notes that the Veteran's sleep impairment and psychiatric disability would now preclude him from working. The matter of entitlement to a TDIU is referred to the RO for consideration, including whether the claim should be referred to the Director of Compensation and Pension Services for consideration of a TDIU pursuant to 38 C.F.R. § 4.16(b). Review of the electronic record discloses evidence pertinent to this matter, which has been considered by the RO in its most recent adjudication. FINDING OF FACT From October 3, 2007, the anxiety reaction with headaches is shown to result in moderate disability due to symptoms such as depressed or dysthymic mood, anxiety, low energy, memory problems and sleep problems. Such symptoms most closely approximate occupational and social impairment with reduced reliability and productivity, but not with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 50 percent rating, but no greater, for anxiety reaction with headaches are met effective from October 3, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.132; 38 C.F.R. § 4.130; Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2007 letter was sent prior to the January 2008 rating decision addressing the increased rating claim for the psychiatric disorder. This letter advised the Veteran of the evidence and information necessary to substantiate his increased rating claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letters advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA treatment records, and private treatment records have been obtained and considered. Translations (to the best extent possible) were made of records in Spanish. The Board has reviewed the Veteran's Virtual VA claims file. The appellant has not identified any additional, outstanding records necessary to decide this pending appeal. Additionally, the Veteran was afforded VA examinations in June 2012 and July 2012 in order to adjudicate this claim. In this regard, the Board finds that the proffered opinions regarding the severity of his psychiatric disability (with headaches) were based on an interview with the Veteran, a review of the record, and a full examination. As such, the Board finds that the opinions proffered by the VA examiners are sufficient to decide the claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the appellant in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the appellant will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Additionally, although regulations require that a disability be viewed in relation to its recorded history, 38 C.F.R. §§ 4.1 , 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation during the relevant rating period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's psychiatric disorder has been classified as including headaches. Where a single disability has been diagnosed as both a physical disability and a mental disorder, the rating agency shall evaluate it under the Diagnostic Code representing the predominant (more disabling) condition. 38 C.F.R. § 4.126(d). (See also 38 C.F.R. § 4.14). In the instant case, the Veteran's anxiety disorder is rated under Diagnostic Code 9400 of the pertinent regulation. See 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). This diagnostic code is the most appropriate because it pertains specifically to the service-connected disability: Generalized Anxiety Disorder. In any event, with the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9400. The relevant criteria for evaluating anxiety disorder are as follows: The 30 percent rating currently in effect is provided for 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 rating is appropriate for: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once 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; and difficulty establishing effective work and social relationships. A 70 percent rating is appropriate 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is appropriate 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 and place; memory loss for names of close relatives, own occupation or name. See 38 C.F.R. § 4.130, Diagnostic Code 9413 (2012). When evaluating a mental disorder, the rating agency must 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 must 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 must consider the extent of social impairment, but it cannot assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2012). The Board notes that the specified factors for each incremental rating are examples rather than requirements for a particular rating, and the Board will not limit its analysis solely to whether the Veteran exhibited the symptoms listed in the rating scheme. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Also relevant to the Board's analysis is the Global Assessment of Functioning (GAF) assigned to the Veteran, which is a scale that reflects the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). While the veteran's GAF score is not itself determinative of the most appropriate disability rating, the Board must consider it when evaluating the appropriate disability rating for the veteran. See VAOPGCPREC 10-95. Descriptions of the relevant GAF ranges are as follows: A GAF score ranging from 31 to 40 reflects 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). A GAF score ranging from 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score ranging from 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). DSM-IV, pp. 46-47. See 38 C.F.R. § 4.130 (2012) (incorporating by reference the provisions of the DSM-IV for rating purposes.) The Board now turns to an evaluation of the relevant medical evidence in the Veteran's case. In a December 1971 rating decision, service connection was granted for anxiety reaction with depressive features, with an initial 10 percent rating assigned. This rating also granted a separate 10 percent rating for tension headaches associated with this disorder. The rating was increased to a 30 percent rating in a November 1975 rating which reclassified the disorder as anxiety reaction with headaches, and determined that separately rating the headaches associated with the psychiatric disorder was clearly and mistakenly erroneous. The 30 percent rating and classification of the psychiatric disorder as anxiety reaction with headaches was confirmed and continued in subsequent rating decisions including the rating currently on appeal. The Veteran filed a claim for increase in October 2007. Among the evidence pertinent to this claim are VA records from 2006 to 2008 that included psychiatric treatment, including in February 2006 when he was treated for anxiety with complaints of stress and some memory lapses, but with no significant issues shown on mental status examination other than a phobia to darkness, feelings of worthlessness and a mildly depressed mood. He was also noted to be suspicious of medications to treat his symptoms , and initially reluctant to increased SSRI doses. The assessment in February 2006 was of generalized anxiety disorder (GAD) with depressive signs and symptoms present, with old PTSD possible. His GAF was 60. A July 2006 psychotherapy record disclosed complaints of chronic depression, with symptoms of depressed mood, anhedonic, guilty ruminations, and fluctuations in things like energy, concentration and appetite. Symptoms of PTSD such as intrusive distressing recollections, and war related night mares were reported. His mental status again was unremarkable for significant issues except for depressed mood, with constricted affect. Generally his mental status examination revealed that he had adequate hygiene, calm, normal motor activity, cooperative with slow speech. He was alert, attentive and oriented in all spheres. His thought process was coherent, logical and goal directed. His thought content however revealed the feelings of worthlessness. He had no abnormalities of perception and his insight and judgment were fair. He had no suicidal or homicidal ideations. His diagnosis was changed to major depression, recurrent and PTSD chronic. His GAF was 55. The treating provider thought he had a comorbid major depressive disorder (MDD) with PTSD. The Veteran filed a claim for an increased rating for psychiatric disability that was received on October 3, 2007. In January 2008 a psychiatric progress note revealed he was worried that failing to report for a VA examination would harm his case. He was noted to be unable to control his worrying and was ill humored and tense. Resuming psychology intervention by the mental health clinic (MHC) was discussed. The Veteran felt he would not benefit, though he acknowledged being helped by treatment in the past. Mental status again revealed the phobia to darkness and feelings of worthlessness. Otherwise the mental status findings were generally the same as shown back in July 2006 with depressed mood shown but no major issues of disorientation or thought or perceptual disorders. The diagnosis was expanded to GAD, MDD and PTSD. A GAF of 60 was assigned. He received mental health treatment in May 2008 with complaints of episodes of increased anxiety, excess worry, but mental status again revealed no deficiencies in hygiene, dress, behavior, orientation, or thought process. There was no evidence of psychotic thought or suicidal/homicidal ideations. His mood was noted to be depressed and affect was anxious and constricted. His insight and judgment remained fair. He was assessed with stabilized condition but with remaining episodes of increased worry and acute anxiety that he was unable to control. His Axis I diagnosis was unchanged from January 2008 and his GAF was still 60. In June 2008 a psychologist's note generally revealed the same findings on mental status findings, although a sad mood and constricted affect was noted. His thought content was noted to include preoccupations with traumatic memories. In a September 2008 psychiatry note his GAF was 55, and he still reported feeling anxious, with his mood anxious and affect blunted on mental status findings. Otherwise his mental status continued to show unremarkable findings in general, with no major cognitive issues, psychosis or suicidal/homicidal ideations evident. In October 2008 follow-up he reported an increased dosage of Levothyroxine done by primary care, with subsequent complaints of dreaming a lot and being disoriented at times. Regarding the latter, he described forgetting where he was going or what he was doing. He also had intermittent anxiety. He expressed anxiety about his medications possibly causing long term harm. He discussed his desire to continue treatment with a private psychiatrist he had seen for 25 years, with fee basis requested. Mental status showed no major deviations from priors, although his mood was depressed and affect was constricted. He had no parasuicidal or psychotic behaviors. He was assessed as stable on the current regimen. He continued to be diagnosed with GAD, MDD and PTSD. His GAF was 60. The report of an October 2008 VA examination revealed the Veteran to be requesting fee basis treatment for his psychiatric issues. There was no history of hospitalizations for psychiatric problems. The current treatment included medication and individual psychotherapy. He still became anxious when the effect of medications decreased, so his dosage was increased by his psychiatrist. The Veteran still had issues with dreams and sometimes his nightmares increased, although he could sleep with the prescriptions. He described that in order to deal with his restlessness and anxiety after retirement, he became involved in church activities such as visiting inmates and sick parishioners. He was noted to have a sad facial expression when questioned. He felt depressed because of being so many years under treatment and his condition was still present. He worried about long term side effects of medication. He reported intermittent anxiety with no particular frequency. His anxiety increased when hearing discussions about war, but at home his wife helped as she tended to steer the conversation away from that topic. Examination revealed him to be clean, casually dressed and tense. His speech was clear and coherent, although soft or whispered. He was cooperative, with appropriate affect and dysphoric mood. His attention was intact, he was oriented times 3. His thought process was unremarkable. He did have preoccupation with one or two topics. He had no hallucinations or delusions. His judgment was that he understood the outcome of his behavior. He had average intelligence. His insight was that he partially understood he had a problem. He interpreted proverbs. He had no obsessive or ritualistic behavior. He had no panic attacks, no suicidal or homicidal ideations. He had good impulse control and no violent episodes. His recent and remote memory were normal. He had mildly impaired immediate memory. He reported forgetfulness, with occasions of driving and going elsewhere than intended. He was competent to handle funds. He had no evidence of alcohol or substance abuse problems associated with his mental disorder. His usual occupation was that he was a retired postal clerk who retired in 2002 by age/duration of work. His Axis I diagnosis was GAD chronic with depressive features. His GAF was 65 currently. The examiner opined that the symptoms did not cause total occupational or social impairment, nor did they result in deficiencies in areas of judgment, thinking, family relations, work, mood, or school. Nor did they result in reduced reliability or productivity due to his mental disorder. Private fee basis treatment records from 2008 to 2009 were in Spanish and largely illegible, but include partially translated portions that showed some issues with a January 2008 record indicating that he desired to attack his son due to disagreements between them. In November 2008 he endorsed suicidal ideations and was having disagreements with his wife. In February 2009 he reported being afraid of losing his wife and indicated that in the past he had suicidal ideations and homicidal ideations. He said on 3 occasions he had suicidal ideations, and suggested that he could not live without his wife. A March 2009 note discussed their plans to move to the U.S. at the end of the month. By April 2009 he was more relaxed and wanted to travel to the U.S. to visit his children. By July 2009 he was more relaxed and felt that family relations had improved. A September 2009 note indicated he wanted to solve family problems. A February 2009 private mental evaluation indicated that the Veteran had promised to move to the U.S. to be closer to his youngest son and was considering getting a job to pay for the obligations that would be incurred. He was noted to fear losing his wife. Mental status examination revealed evidence of anxiety, depression and marked ambivalence in interpersonal relations particularly with his wife and sons. He had evidence of poor impulse control of aggressive impulses and marked fear of losing control of his impulses. Homicidal and suicidal ideations were present, and he had persistent separation anxiety. Judgment was impaired. His social relations were mostly limited to his wife, sons and brothers. He was diagnosed with prolonged depressive disorder, separation anxiety disorder and marital conflict. His GAF was 55. His disability was described as moderate to severe in social (mostly interfamily) situations. The private evaluator stated that he would not benefit from joining the work force again. The same medical provider who conducted the February 2009 private mental evaluation in February 2009 also rendered a private summary of treatment dated in March 2009. This report described treating the Veteran on a fee basis from January 1976 to May 1997, and summarized the Veteran's history through 2009. The Veteran was noted to have considered retirement in April 2003 and after retirement his depression increased. He was noted to have worried about issues with his younger son. By December 17, 2007 he was depressed and considered hospitalization for suicidal ideations. He was also concerned about his younger son and brother. He was noted to have started fee basis treatment in October 2008. By November 2008 he was reported to complain of suicidal ideations and a disagreement with his wife. In January 2009 he described a family conflict which resulted in him striking his son who he was visiting and his wife threatened to divorce or leave him. They began couples therapy later in the month and his wife said she feared the Veteran might hurt her and reported that he had threatened to kill her in the past. In February 2009 the Veteran described being unable to live without her and feared losing her by separation or illness. He admitted suicidal and homicidal ideations. In November 2009 he described his family relations as improved, and in December 2009 he reported considering moving to the U.S. (where his sons lived). The report of a June 2010 VA examination included review of the claims file. The examiner reviewed and recited the findings from the prior VA examination of October 2008. Mental status examination was essentially the same as that demonstrated in the October 2008 VA examination, with no remarkable deviations in mental status noted. He was described as having no evidence of a major thought disorder or major cognitive impairment, had no inappropriate behavior, and was able to maintain personal hygiene with no problems in activities of daily living shown. The Axis I diagnosis was GAD, chronic with depressive features, with no other Axis I or Axis II mental condition found. His GAF was 70. As in October 2008, the examiner opined that the symptoms did not cause total occupational or social impairment, nor did they result in deficiencies in areas of judgment, thinking, family relations, work, mood, or school. Nor did they result in reduced reliability or productivity due to his mental disorder. Additional translated records from private fee basis treatment showed that in January and February 2010 he continued to report improved family relations. Plans to buy a house in Florida were reported in March 2010 and he appeared more relaxed, describing how he wanted to move to be closer to his children. His family situation continued to be described as improved, with better communication, and he reported feeling more relaxed in April 2010. VA treatment records from 2010 revealed that in August 2010 he underwent new patient orientation in the mental health group. A primary care note from the same note revealed depression screen and PTSD scores were positive and he was noted to have a history of thoughts of taking his life, but none since June 2010. The depression screen again was positive in October 2010 with findings suggestive of severe depression. The Veteran gave a history of feeling down, depressed and had little interest or pleasure in doing things nearly every day. He reported being tired, with little energy, and trouble concentrating doing things such as watching TV or reading nearly every day. He endorsed thoughts of being better off dead or harming self for several days. He gave a history of a suicide attempt with the last "plan" 6 months ago before moving to the U.S., which he described as planning to drive off a mountainside. He denied any current plans. He described his symptoms as making it very difficult to work or take care of things at home, or to get along with others. VA treatment notes in October 2010 include a psychiatry note revealing the Veteran reporting things as "so so" and always feeling depressed. He complained of nightmares and flashbacks with poor sleep if he did not take medication. He described problems with his wife who suspected he was seeing another woman due to his persistent low libido of 3-4 years duration. Mental status examination was essentially the same as the previous ones in VA records, although his mood was noted to be depressed. His thought process continued to be logical, relevant and goal directed. His impulse control was intact and insight and judgment were adequate and intact. He had no abnormalities in grooming, dress or speech noted and no evidence of psychotic features or of homicidal or suicidal ideations. The assessment was MDD and PTSD and a GAF of 55 was assigned. A medication management note of the same month documented complaints of the Veteran feeling "bored" with ongoing complaints of nightmares, hypervigilance, anxiety, depression and anger. These symptoms led to marital conflict. Mental status was the same as the others with a depressed mood noted and his thought content focused on getting relief from financial and social problems and lingering PTSD symptoms. This note gave a diagnosis of PTSD and depressive disorder not otherwise specified, with a GAF of 55 again assigned. Another October 2010 note of a mental health consult revealed chief complaints of suicidal ideations with a more depressed mood lately due to marital stressors and the recent move to Florida from Puerto Rico. He denied feeling helpless or hopeless. His symptoms included nightmares related to service. Mental status findings did not deviate from the others although noteworthy for depressed mood and restricted affect. His diagnosis was depressive disorder NOS rule out PTSD and his GAF was 54. In November 2010 the Veteran reported suicidal thinking with plan of driving a car into a ditch but denied looking for a ditch. He reported depressed mood, PTSD symptoms, moderate hopelessness and sleep problems of nightmares and frequent awakening. He also reported physical symptoms comprised of trouble breathing, tightness in his chest, feeling like he is he is going to pass out, and a feeling of losing control, more generally described as anxiety symptoms. He described not wanting to do anything due to anxiety symptoms and wanted to stay in his bed. His appetite was fair. A past history of a suicide attempt around December 2009 when he tried to take a friend's gun to do so was reported. He also said he wanted to crash his car 2 years ago. He also reported overdosing on pills intentionally. Further he reported that in the past he tried to shoot his wife but the gun misfired. She did not call the police or press charges. He endorsed a good relationship with his children and good family support. He reported leisure activities such as gardening, listening to music and going for walks with his wife. Mental status examination was generally the same as prior ones, although he tended to look down a lot during the session. The assessment was PTSD, GAD versus obsessive compulsive disorder (OCD), and Depression NOS. His GAF remained at 55. Regarding possible OCD symptoms, he was noted to have obsessive compulsive symptoms of checking the garage and water faucets a lot when nervous. VA treatment records from 2011 reveal that in February 2011 the Veteran reported he had been sick and his depression had gotten worse. He said he felt suicidal the day after Christmas as the holidays made him sad and he wanted to die. However he had no plan. Now he reported having more hope but sometimes still wanted to die when the memories of the war kept returning. He reported sleep disturbance, flashbacks, hypervigilance and being easily startled. He had interest in therapies for PTSD. Mental status was similar to others, although his eyes were downcast frequently during the session. His mood was down and anxious and his affect was mildly constricted. No suicidal ideations were present but he had such ideations without plan the previous week. The diagnosis was unchanged and his GAF continued to be 55. The same month he reported sadness at the death of a close relative in Puerto Rico. His mood was depressed but otherwise his mental findings were unremarkable. The GAF continued to be 55. In March 2011 he continued with the sleep disturbances including nightmares as well as flashbacks, hypervigilance and startle response. However the flashbacks and sleep disturbances had decreased somewhat. He reported the relaxation skills he learned helped him feel less tense and go to sleep. Mental status was essentially unchanged from previous ones although psychomotor retardation, a mildly anxious and down mood and a mildly restricted affect were noted. He was deemed a low suicide risk. The assessment was PTSD, GAD and depression NOS. His GAF was 56. Medication management notes from the same month described him as relating that he was less depressed which he attributed to his treatment, and his wife noted that he was getting better. His mood was mildly depressed but otherwise no remarkable mental status findings were reported. The assessment was PTSD with a GAF of 55 assigned. He also participated in a PTSD class in March 2011. In April 2011 a psychotherapy note reported his GAF as 57, and he reported a decrease in flashbacks and sleep disturbances, and no significant changes on mental status exam were shown other than his mood noted to be less down and anxious. In May 2011 the Veteran reported symptoms of being unable to sleep at all after having run out of Diazepam 3 days earlier. He was triaged for medication resumption purposes, with no significant mental status findings noted other than being somewhat anxious due to his sleep issues. A psychotherapy note from the same month documented him as reporting his mood as happy 50 percent of the time and no significant mental status deviations. He still had hypervigilance and startle issues but his sleep problems improved with fewer awakenings and nightmares of only once a week. He described how religion and relaxation techniques helped him cope with symptoms. His GAF was 58. In June 2008 he complained of fluctuating symptoms saying "I go up and down." He related having periods of feeling anxious and depressed and continued with periodic insomnia, flashbacks and nightmares. He lived with his wife and adult daughter who were supportive although he got into arguments with his wife at times. Overall the relationship was tolerable. He attended church regularly and would soon be celebrating their 42nd anniversary. He took Zoloft and Valium without side effects. Mental status exam revealed he was restless and his mood was depressed and irritable. Otherwise no significant deviations from prior findings were shown. He was diagnosed with PTSD with a GAF of 55 assigned. In August 2011 he was seen for the first time by a new VA therapist who conducted an initial assessment. Along with ongoing symptoms attributed to PTSD, he also had moderate symptoms of depression with loss of libido as major symptoms. He also had pessimism, sadness and fatigue. He described a long term history of suicidal ideations but denied any presently. The last such time was reportedly last year. He expressed closeness to his entire family and indicated strong faith, attending church weekly. He was a retired postal clerk after working 33 years. His chief complaints were nightmares 2-3 times a week, hypervigilance, and sleep of only 2-3 hours with frequent awakening helped by medications. His wife reportedly took care of him. He denied suicide attempts and reported drinking only 1-2 beers socially at Christmas. He was very close to his family including extended family. Aside from church attendance, he walked or swam unless depressed and socialized with family and friends. He enjoyed fishing with his son. He denied any legal problems. Mental status again was negative for any evidence of major thought impairment (including in cognition or behavioral), psychosis or perceptual disturbances. He did have a dysthymic mood with congruent affect and showed emotional distress at combat memories. He was assessed with PTSD chronic and depression NOS. A GAF of 57 was assigned. Other records from August 2011 showed no evidence of suicidal thoughts or threats in the past 30 days although he described a long term history of suicidal ideations. He denied any such thoughts this year. An August 2011 psychiatry note described him as feeling okay although he reported continued PTSD symptoms with irritability, flashbacks and nightmares. He also saw his clinical psychologist in a group setting. Mental status examination revealed he was restless with a depressed and irritable mood. His affect was broad and attention was distractible. His recent memory was forgetful at times although remote memory was intact. Otherwise the mental status examination showed no significant deviation from previous ones. His suicide risk was low although he was noted to have had either a past history of homicidal/violence history or risk. He was diagnosed with PTSD and his GAF was 55. In November 2011 the Veteran was seen for a second session with the new therapist and reported increased sadness due to his spouse's current health issues. He was worried about her and expressed fears about the future. He had been dependent on her throughout their 44 year marriage. His son lived nearby and offered support but he still felt very vulnerable and alone. He reported increased sadness and continued to struggle with fatigue. He denied current suicidal ideations but said he would not want to live without his wife. He was noted to have resources with the church and his family. Mental status examination was again unremarkable for significant pathology. He was mildly distressed and tearful during the session, with a sad/dysthymic, mildly anxious mood with congruent affect. He was assessed with PTSD and depression NOS. A GAF of 57 was assigned. He was deemed a low suicide risk. In a December 2011 mental health/psychiatry note he reported feeling pretty good and was compliant with his medications. He described his mood as irritable at time and had some mild anxiety due to his wife's illness. He did have nightmares, flashbacks and avoidance behaviors, as well as intrusive thoughts. Mental status was noteworthy for irritable/anxious mood, restricted affect and distractibility. Otherwise he did not deviate from previous findings of no problems in dress, grooming, orientation, mental process and lack of psychosis shown. He did have flashbacks, nightmares and intrusive thoughts in his thought content. His insight and judgment were good and he was deemed a low suicide risk. He had no homicidal ideations present. The diagnosis was PTSD and his GAF was 55. He was described as having mild mood symptoms related to PTSD and recent illness of his wife. In January 2012 the Veteran's son contacted VA by telecare reporting severe mental status changes in the Veteran, who was presently in Puerto Rico. He was described as having become aggressive, sharpening knives and machetes and threatening to kill his wife. His wife had noticed he had not been taking medications since December 26, 2011. He was also drinking and driving. His wife was in Florida with their son for safety. Telecare forwarded the notes and pertinent contact information to the mental health care provider in San Juan for triage. Subsequently he is noted to have been a no show for follow-up treatment in March 2012, but received treatment that same month for a broken leg, with the follow-up notes addressing this medical problem. An April 2012 MH psychiatry note revealed the Veteran to provide further detail about what he described as his crisis in January. He reported that at that time he drank 12 bottles of beer in 4 hours and felt depressed. He started attending AA meetings twice a week and regularly communicated with an AA sponsor. He denied drinking since that incident. He still had lingering nightmares, flashbacks, anxiety and irritability. Mental status again revealed him to be restless, with depressed and irritable mood, but otherwise no significant mental status abnormalities were shown. He had no suicidal or homicidal ideations. He was assessed with PTSD, alcohol abuse by history, currently in remission. His GAF was 55. In May 2012 he was seen for a comprehensive treatment plan with the history of the crisis in January 2012 noted. He wanted to resume psychotherapy. He underwent a diagnostic study in May 2012 that indicated he met the criteria for PTSD but this was based on self reporting and not sufficient to use for diagnostic purposes. A May 2012 psychology note for further therapy revealed the Veteran to describe ongoing PTSD symptoms, but also reported symptoms of depression including sadness, pessimism, sense of punishment, loss of interest and loss of libido. He described long term passive thoughts of death but denied any previous suicide attempts. He joined AA in February after the heavy drinking in January. He found it therapeutic. He attended church once a week with his wife and she was noted to be doing better healthwise. She was very supportive. He had close connections with his adult sons and daughter. He talked to one who lived out of state almost daily and visited the local son almost weekly. Mental status examination revealed he was well dressed and groomed, alert and oriented on all spheres. He was friendly, cooperative and had good eye contact with normal speech. His mood was sad/depressed with congruent affect. He had no evidence of a formal thought disorder. His insight and judgment were good and his memory was intact. His concentration was fine. He had no suicidal or homicidal ideations. He was assessed with PTSD, depression NOS, alcohol abuse in remission. His GAF was 57. The report of a June 2012 VA examination provided Axis diagnoses of Generalized Anxiety Disorder(GAD), Major Depressive Disorder (MDD) and Alcohol Abuse in remission. His current GAF was 52. His GAD manifestations included anxiety, restlessness, excessive worry/rumination, social withdrawal, restricted affect and sense of foreshortened future. The MDD manifestations included depressed mood, social withdrawal, anhedonia, irritability, decreased appetite, decreased libido, sleep disturbance, problems concentrating/focusing/attention, and suicidal ideation (with no current plan or intent). These symptoms overlapped and existed concurrently preventing a delineation of symptoms. The examiner determined that his symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner confirmed review of the claims file and CAPRI/Vista Web records. The examiner described the Veteran's history since the last VA examination of June 2010, noting the Veteran remained married to his wife of 46 years, with a good relationship overall. He noted there were tensions between them particularly due to his decreased libido. He explained that she believed he had other women but he denied this, stating that he has been with her and nobody else for 46 years. He stated that his illness took away his sexual desire. He reported maintaining close relationships with his sons, one he lived nearby and one who lived out of state. He remained retired since 2002 after 30 years as a postal clerk. He currently participated in prolonged exposure therapy with a psychologist and also medication therapy. He also attended AA, having stopped drinking alcohol in February 2011. The Veteran's current symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions or recent events, disturbance of motivation and mood, and suicidal ideation. He also had periods of intense anxiety/restlessness, excessive worry, headaches, intermittent thoughts of death and suicidal ideations at times, but no current plan or intent. He also had decreased libido, problems with concentration/attention and irritability. He was competent to manage his affairs. Mental status examination revealed the Veteran was well groomed, well nourished and neatly dressed. He was fully oriented to person, place, and time. His eye contact was good. He was very cooperative and rapport developed quickly. Overall his speech was normal for rhythm and rate but quiet. His psychomotor activity was notable for fidgetiness. His overall mood was mildly depressed with a somewhat restricted affect at times. However he was able to adjust his affect appropriately. His thought processes were linear, logical and goal directed. There was no evidence of any perceptual disturbances, paranoia or delusional thinking. He denied current suicidal or homicidal thinking. His cognition appeared within normal limits. Insight, judgment and impulse control were intact. He was noted to have been out of the workforce for 10 years. Since retiring he has become almost reclusive with no social contacts other than family. His chronic sleep impairment contributed to problems with concentration, which has led to intermittent lapses in working memory. This would likely impair his ability to learn a new skill for today's workforce. Given these concerns, along with his chronic anxiety and depression, it is the opinion of this examiner that he is unemployable in either a physical or sedentary position. The Veteran additionally underwent examination for headaches on July 2012, given that this disability has been classified to include headaches. On examination, the headaches were classified only as headaches, without a migraine or other diagnosis given. His symptoms were reportedly present since he got out of Vietnam in 1968 and worsened with flare-ups of anxiety. He described them as constant and severe to the point that he had to go to bed for more than 2 hours for relief. The intensity was 8-10/10 on the pain scale. He described them beginning on the frontal and radiating to the occipital area. He described the pain as intense pressure. He had dizziness and intolerance to loud noise during headaches. He denied nausea, vomiting or auras. He described them as interfering with activities of daily living like enjoying time with his family and sleeping. He said they awakened him at least once a night. He denied hospitalizations for headaches and currently took Lortab 5/500 1 to 3 times a day for headaches. He denies having seen a neurologist or having any studies for headaches. Symptoms included constant head pain, localized to the entire skull, pressure like headaches. Sensitivity to sound was noted. He reported them as constant. He did not have the characteristic, prostrating symptoms of migraines, but did report prostrating attacks of non migraine headaches more than once a week. He did not have very frequent prostrating attacks however. No other significant findings or diagnostic tests were reported. A functional impact was described as impacting his ability to work as he would be unable to concentrate in any job setting due to the debilitating headaches. Physical examination revealed cranial nerves were intact, no nigstasmus, sensory was intact, Romberg was negative and neurological examination was intact. The severity of headaches were moderate to severe. Although headaches were included as part of the rated psychiatric disorder, and while he was examined for headaches in July 2012, a review of the treatment records in the claims file and electronic record are silent for treatment for or complaints of any type of chronic headache disorder. Based on a review of the foregoing, the Board finds that the evidence supports a 50 percent evaluation for the service connected psychiatric disorder during the pendency of his claim. The evidence which includes the private and VA treatment records from 2006 to 2012, generally show the Veteran to suffer 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; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. While the Veteran generally presented overall as unremarkable in repeated mental status examinations, his symptoms included phobias, memory lapses and somewhat paranoid ideas (suspiciousness) regarding his medication regimen as early as February 2006, with fluctuating symptoms affecting his energy, concentration and appetite in July 2006. His symptoms and concerns remained similar in the records throughout 2008, which noted the same issues with phobias and concerns about medication. He also showed some issues with disorientation and memory lapses resulting in forgetting where he was going in the records and examination of October 2008. He also demonstrated preoccupations with certain memories and persistent anxiety. His overall mood was shown to be depressed or dysphoric, and he endorsed persistent sleep problems. Additionally, while he generally denied suicidal or homicidal ideations in the records and in the mental statues examinations in particular, the records beginning in 2009 show that he had endorsed suicidal ideations and had once threatened the life of his wife. Such suicidal ideations are further disclosed in the later records from 2010 through 2012, with further details about such ideations discussed. The later records also showed continued issues with depressed mood, sleep problems and anxiety. Overall such symptoms are consistent with a 50 percent rating under the General Rating for mental disorders. While the GAF's generally are shown to be in ranges from 55-60, with scores of 65 and a high of 70 documented in the June 2010 VA examination, overall his symptoms, when considered separately from the generally unremarkable mental status examinations demonstrated at the sessions and examinations, are suggestive of a 50 percent rating. Overall the GAF scores between 55-60, which reflect moderate symptoms, appear to be the most representative scores of the Veteran's condition. While he is shown to meet the criteria for a 50 percent rating from the pendency of this appeal up to June 25, 2012, his disability is not shown to be more than 50 percent disabling at any time during this appeal. Moreover, it is not shown that an increase in psychiatric disability occurred during the one year period prior to his claim for an increased rating and an effective date prior to October 3, 2007 for an increased rating is not warranted. The Veteran is noted to be retired, but has been involved with volunteer work via his church, which entails contact with the public. His examinations reflect that he was fully oriented and cooperative, and was able to interpret proverbs appropriately. He generally got along well with his wife and other family members, including extended family, and enjoyed socializing. He did manifest some symptoms of tension or of depressed mood and constricted affect, but did not manifest obvious psychosis or impairment of impulse control. His dress and grooming were repeatedly shown to be good. Thus the findings of the records and VA examination reports reflects that his symptoms are no more than 50 percent disabling. While the Veteran did suffer an episode of breakdown of symptoms in January 2012, with threats of violence and self harm shown, this episode appears to have been a temporary exacerbation of symptoms brought about by abusing alcohol and failing to take his medications. By April 2012 he appears to have stabilized and his mental status examination was generally unremarkable. Likewise, the June 2012 examination did not reveal him to have deficiencies in most areas and mental status examination was essentially unremarkable. In sum, based on the medical and lay evidence available the Board finds evidence more closely resembles the criteria for a 50 percent rating for psychiatric disorder classified as anxiety reaction with headaches from the pendency of this claim up to June 25, 2012. See Mauerhan, supra, 38 C.F.R. § 4.7. As of June 25, 2012, or at any point during this appeal, the preponderance of the evidence is against a rating in excess of a 50 percent rating for the service connected psychiatric disorder. Because the evidence now shows that a 50 percent rating is warranted for psychiatric disorder classified as anxiety reaction with headaches continuing throughout the pendency of this appeal, there is no need to further address the appropriateness of staged ratings as per Hart, supra. In regards to the somatic issues of headaches that had been classified as part of this disability, the Board notes that aside from the VA examination of June 2012, the evidence is devoid of any evidence of a chronic headache disorder. Again no mention of this as a problem is made in the treatment records for his psychiatric disability or other treatment records focusing on other medical issues. Even considering the Veteran's headaches described in the June 2012, it is not shown to be the predominant disability. According to Diagnostic Code 8100, a 10 percent (compensable) disability rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months; and a noncompensable rating is warranted for less frequent attacks. The evidence does not reflect characteristic prostrating attacks. The Veteran complains of headaches in addition to psychiatric symptoms, but the predominant disability is shown to be the psychiatric disorder rated at 50 percent disabling, and headaches do not warrant a separate evaluation. See 38 C.F.R. § 4.126(d). As the matter of whether a TDIU pursuant to 38 C.F.R. § 4.16(b) is being referred to the RO for consideration, the Board will not consider an increased rating pursuant to 38 C.F.R. § 3.321(b)(1). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating of 50 percent, but no higher, for psychiatric disorder classified as anxiety reaction with headaches is allowed from October 3, 2007, subject to the laws and regulations governing the award of monetary benefits. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs