Citation Nr: 1343012 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 10-27 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for service-connected migraine headaches. 2. Entitlement to a disability rating in excess of 30 percent prior to September 17, 2013, and in excess of 50 percent, thereafter, for service-connected major depressive disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from August 1998 to October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia that denied disability ratings in excess of 30 percent for migraine headaches and for major depressive disorder and denied a disability rating in excess of 10 percent for genital herpes. In April 2010, the Veteran testified at a personal hearing over which a Decision Review Officer of the RO presided. A transcript of that hearing has been associated with her claims file. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the April 2010 hearing, the Decision Review Officer clarified the issues on appeal and inquired as to the severity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask questions regarding her claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. On the record during the April 2010 hearing, the Veteran withdrew the appeal of an increased disability rating for the service-connected genital herpes. Therefore, the issue is no longer before the Board. 38 C.F.R. § 20.204 (2013). During the pendency of this appeal, in November 2013, the RO determined that the service-connected major depressive disorder warranted a 50 percent disability rating, effective September 17, 2013. As a higher rating is available and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they include additional VA outpatient treatment records that were considered by the Agency of Original Jurisdiction in the most recent Supplemental Statement of the Case in November 2013. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's migraine headaches manifest as daily pain with prostrating attacks lasting one day or longer and more often than monthly prostrating attacks that cause missed days at work and school, the use of narcotic medication, and occasional emergency room treatment for acute episodes. 2. Prior to September 17, 2013, the Veteran's major depressive disorder and overlapping generalized anxiety disorder manifested with symptoms such as depressed mood, irritability, and acute anxiety reactions that interfered with her part time customer service duties and imposed moderate social and occupational impairment. The Veteran was not acutely suicidal, psychotic, manic, obsessive or compulsive and displayed normal speech and thought processes with no memory, insight, or judgment deficits. 3. Effective September 17, 2013, the Veteran's major depressive disorder and generalized anxiety disorder manifests with decreased reliability and productivity with worsening symptoms of depression and anxiety and the dissolution of her marriage. The Veteran displayed reduced reliability and productivity but remained employed as nurse and teacher suggesting at least moderate social and occupational functioning. The Veteran did not display deficiencies such as judgment or thinking; obsessional rituals; illogical, obscure, or irrelevant speech; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control with periods of violence; spatial disorientation; or neglect of personal appearance and hygiene. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating for service-connected migraine headaches are met for the entire period of time covered by the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). 2. The criteria for a disability rating in excess of 30 percent prior to September 17, 2013, and in excess of 50 percent, thereafter, for service-connected major depressive disorder, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In January 2008, the Veteran was notified of the evidence not of record that was necessary to substantiate her claims. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. She was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on her employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that she could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's service treatment and post-service VA and identified private treatment records and lay statements by relatives, an employer, and a student administrator have been obtained and associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when it is necessary to make a decision on a claim. The Veteran was provided VA examinations in January 2008, February 2008, and September 2013. The results have been included in the claims file. The examinations involved an accurate summary of the history from reports by the Veteran, consideration of her lay statements, and a thorough clinical examination in compliance with regulations and protocols with the results appropriate for application to the rating criteria. Therefore, the Board finds that the examinations are adequate to decide the claims. In sum, the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 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 (2013). 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 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2013). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2013). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Veteran served as a United States Navy seaman with duties as a deck seaman and medical administrator aboard a destroyer. She contended in a November 2008 claim, a July 2009 notice of disagreement, and in an April 2010 RO hearing that her symptoms of migraine headaches, depression, and anxiety are more severe than are contemplated in the current ratings and have affected her employment. Migraine Headaches Service connection for migraine headaches was granted by rating action dated in August 2005, at which time an initial 30 percent disability rating was assigned effective as of August 24, 2004, the date of receipt of the Veteran's claim. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Following the issuance of the August 2005 rating decision which granted service connection for migraine headaches, there is no evidence received within one year which relates to the service-connected migraine headaches. Thus, with respect to the claim seeking an increased disability rating, the October 2008 rating action is the proper rating decision on appeal. The Veteran's migraine headaches have been rated at 30 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides the rating criteria for migraine headaches. Under Diagnostic Code 8100, a 30 percent disability rating is warranted for characteristic prostrating attacks occurring on an average once a month over the last several months. The maximum 50 percent disability rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadapability. As there is no lay or medical record of other diagnoses such as traumatic brain injury or other central nervous system diseases, the Board finds that Diagnostic Code 8100 is most appropriate for application. The RO received the Veteran's claim for an increased rating in November 2007. VA and private primary care treatment records for the previous year show ongoing treatment for daily headaches and difficulty sleeping with the use of oral and injectable medication with variable degrees of relief. A magnetic resonance image (MRI) study of the brain obtained in October 2005 was normal. In January 2008, a VA physician noted the history of the headaches with a 1999 onset. The headaches would occur once per day with more severe episodes two or three times per week that would occasionally include vomiting and required medication and rest in a dark room. Several visits to an emergency room for administration of morphine was noted. The Veteran was said to have left her job at a VA hospital because of frequent absences and that she worked at a golf course. VA outpatient treatment records dated through April 2010 show ongoing use of several medications including opiates. In June 2009, a VA clinician noted that the Veteran reported that the headaches were less frequent and less severe with regular use of a certain medication. She reported working as a bartender at a golf course and taking education courses to become a paramedic. In April 2010, the Veteran submitted three lay statements. The administrator of the her paramedic education program noted that she had missed the maximum allowable absences because of migraine headaches that hindered her ability to drive an automobile. Her employer noted that he was only able to keep her employed on a part time basis because of migraine headaches that caused missed or rescheduled work. Her spouse noted that the migraine headaches had become more severe requiring twice per month hospital treatment with injections. It was noted that she was unable to drive or walk and had to rest in bed all day during an attack. During an RO hearing the same month, the Veteran confirmed that she was able to work 20 hours per week as a bartender and attend four-hour evening classes twice per week and occasionally all day Saturday. She testified that she experienced headaches almost every day with weekly attacks that prevented driving, walking, and lifting her head. She testified that she had missed the maximum number of school absences and had to leave work early at least once every two weeks. In September 2012, a VA neurologist examined the Veteran and noted her report that she would go several months without a headache and then have 10 episodes in one month of duration of three hours to several days. She reported currently experiencing a daily headache that caused her to miss work and nursing school a total of 18 hours every five weeks and seek urgent care at a hospital emergency room on several occasions. In August 2013, a VA mental health examiner noted the Veteran's report of teaching nursing. She continued to report missing days at work but that she was able to fulfill her teaching obligations. In September 2013, the Veteran was examined by a VA contract physician. The physician briefly summarized the history and noted the Veteran's report of headaches without nausea or light sensitivity that lasted up to one day with prostrating attacks less than once every two months. The Veteran continued to use narcotic medications. The majority of the report was in a "check the box" format with little narrative. However, in a mental health examination the same month, the Veteran reported that she received an associate's degree in nursing and worked as a nurse, although in fear of termination because of missed work about once per week. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for the assignment of a 50 percent disability rating, but not higher, for migraine headaches have been met for the entire period covered by this appeal. The Veteran is competent to report on her observed symptoms including the frequency, duration, and severity of headaches and the nature of the resulting impairment. Her reports are credible because examiners accepted her symptom descriptions and the frequency and duration of prostrating attacks without challenge as imaginary or exaggerated. During an attack, the Veteran must rest in a dark room and is unable to drive or engage in daily activities. Therefore, the Board finds that the attacks are best characterized as prostrating. Treating clinicians have regularly prescribed narcotic and injectable medications including opiates. The Veteran has occasionally required these medications in hospital emergency rooms on an urgent basis. Therefore, the lay and medical evidence confirms the occurrence of characteristic prostrating attacks frequently than once per month. However, the frequency and duration are variable and inconsistent. Although she reported that some attacks were prostrating because they required rest in a dark room for a day or more or a visit to an emergency room more often than once per month, at other times she reported no attacks for several months and symptom improvement with certain medications. In the most recent examination, the Veteran reported prostrating attacks less than once every two months. In 2010, the Veteran, her employer, and a school administrator all noted that the Veteran frequently missed work or school because of the headaches. In 2013, the Veteran reported that she was successful in obtaining a degree and continued to work at least part time. The regulations do not define the duration of attacks necessary to qualify as "prolonged" or the level of economic inadaptability necessary to qualify as "severe." In this case, the Veteran does experience frequent prostrating attacks that last at least one day and preclude work or school more often than once per month. However, despite the missed work and school, she was able to complete her education and continues to work as a nurse or teacher. The Board finds that the economic impact is less than severe. The Board places greater probative weight on the frequency, duration, type of medication, and impact of the migraine headache attacks as noted in records prior to 2013 and less on the single September 2013 report. The latter report was inconsistent with all previous assessment and lacked any narrative explaining why the number and frequency of attacks were sharply reduced. As the level of disability appears to rest between the 30 and 50 percent disability ratings, and resolving all doubt in favor of the Veteran, the Board finds that a 50 percent disability rating most closely approximates the disability picture over the entire period of time covered by the appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Major Depressive Disorder Service connection for major depressive disorder was granted by rating action dated in August 2005, at which time an initial 30 percent disability rating was assigned effective as of August 24, 2004, the date of receipt of the Veteran's claim. As indicated above, the Court has held that even in increased rating claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim. See Buie, 24 Vet. App. at 242; Bond, 659 F.3d at 1362. Following the issuance of the August 2005 rating decision which granted service connection for major depressive disorder, there is no evidence received within one year which relates to the service-connected psychiatric disorder. Thus, with respect to the Veteran's claim seeking an increased disability rating, the October 2008 rating action is the proper rating decision on appeal. During the pendency of this appeal, by rating action dated in November 2013, the RO determined that the major depressive disorder warranted a 50 percent disability rating, effective as of September 17, 2013. The Veteran's service-connected major depressive disorder is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434 (2013). Under this diagnostic code provision, mood disorders are to be rated under the General Rating Formula for Mental Disorders, which provides that: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once 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 30 percent disability rating is warranted 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). Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2013). A GAF score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51 to 60 is defined as 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). When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign a disability rating based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Prior to the date of claim, the Veteran had been undergoing ongoing treatment for depression and anxiety, at least in part associated with a sexual assault during active service. Private treatment records dated from November 2006 to November 2007 do not address mental health symptoms. VA outpatient treatment included occasional mental health evaluations and psychotherapy as well as prescribed medication. From September 2006 to December 2007, clinicians noted the Veteran's reports of worsening irritability and increased difficulty sleeping. In February 2008, a VA contract psychiatrist noted a detailed history including the circumstances of the rape in service, and the Veteran's subsequent diagnosis of genital herpes. The Veteran reported a daily depressed mood with episodes of acute anxiety and concern about her physical disorders including headaches and her gynecologic status. She reported difficulty sleeping, passive suicidal thoughts, anxiety in public, social isolation, and feelings of guilt, inadequacy, and concern about the future. On examination, the psychiatrist noted that mood and affect were depressed but that the Veteran was not acutely suicidal, psychotic, manic, obsessive or compulsive. She displayed normal speech and thought processes with no memory, insight, or judgment deficits. The psychiatrist diagnosed major depressive disorder and generalized anxiety disorder, both a direct result of the rape. The psychiatrist also noted that the Veteran was not a threat to herself or others and was capable of working on a full time basis. A GAF score of 55 was assigned indicating moderate symptoms. As noted above, the Veteran was able to work part time and successfully earn an associate's degree in the field of nursing, albeit with a history of missed days at work and school. During the April 2010 RO hearing, the Veteran testified that she experienced irritable mood, anger, and anxiety including panic attacks several times per month that manifested as chest tightening and labored breathing. The symptoms inhibited her ability to provide customer service as a bartender. She reported a stable marriage but recent stress because of a home burglary. In a statement the same month, the Veteran's employer also noted that the Veteran became irritated quickly and was lethargic and standoffish that interfered with her customer service. VA outpatient treatment records from 2010 to 2013 show occasional mental health treatment and prescription medication for anxiety and depression. In August 2013, a clinician noted that the Veteran was teaching and had a stable marital relationship. The panic attacks reportedly occurred once per month. In September 2013, a VA contract psychiatrist noted an accurate history and continued to diagnose major depressive disorder and generalized anxiety disorder. The psychiatrist noted that the symptoms of the disorders overlapped and that it was not possible to differentiate the contribution of each to the overall social and occupational impairment. The Veteran reported feelings of hopelessness and helplessness with crying spells and vague suicidal thoughts. The Veteran also reported chronic worrying, excessive eating, insomnia, and feeling panicky, although the psychiatrist did not find that the symptoms met the criteria for a panic attack. The Veteran reported that her marriage ended in December 2012. The Veteran continued to use prescribed psychotropic medications. The psychiatrist assigned a GAF score of 50 and found that the symptoms caused her to be less effective at work but did not preclude work in any capacity. The Veteran was not a danger to herself or others. The psychiatrist noted that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Board concludes that a disability rating in excess of 30 percent prior to September 17, 2013, and in excess of 50 percent, thereafter, for major depressive disorder is not warranted. Prior to September 17, 2013, the Veteran's mental health disability manifested as depressed mood, irritability, and anxiety with occasional episodes that the Veteran termed panic attacks. She was prescribed psychotropic medications with periodic but not frequent VA therapy. Although she had difficulty executing her duties in customer service, she maintained her marital relationship, and there were no reports by the Veteran of persistent social isolation. She was able to continue part time work and achieve her educational goals. Examiners did not find any thought process, speech, memory, judgment, or insight deficiencies. The vague suicidal thoughts never progressed to a plan or required any intervention. The psychiatrists in 2008 and 2013 both assigned GAF scores in the 50s indicating moderate symptoms and both found that the Veteran was capable of full time work. Considering all the lay and medical observations and assessments, the Board finds that the Veteran's major depressive disorder and overlapping anxiety disorder imposed an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as a part time bartender and student with some social impairment from irritability and moodiness consistent with a 30 percent disability rating. A higher rating of 50 percent was not warranted until September 17, 2013, when the contract psychiatrist noted that the Veteran's symptoms had become more severe and that her marriage had failed as a result. Although the Veteran did display reduced reliability and productivity as described by her employer and the school administrator, the Veteran remained employed as a bartender and as a nurse, both occupations requiring at least moderate social and occupational functioning. A disability rating in excess of 50 percent over the course of this appeal is not warranted. While the GAF score of 50 assigned in September 2013 reflects serious impairment in functioning, the psychiatrist noted only vague suicidal thoughts and determined that the Veteran was not a danger to herself. The anxiety symptoms did not meet the definition of panic attacks. The Veteran did not display dysfunction such as deficiencies in judgment or thinking; obsessional rituals; illogical, obscure, or irrelevant speech; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control with periods of violence; spatial disorientation; or neglect of personal appearance and hygiene. The Board assigns substantial probative weight on the Veteran's ability to practice and teach her nursing profession that requires at least a moderate degree of social, communications, and technical skills. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. Extra-schedular Consideration Finally, the Board finds that the Veteran's migraine headaches and major depressive disorder do not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of her migraine headaches and major depressive disorder is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, the applicable rating criteria sufficiently contemplate her particular symptoms associated with the migraine headaches, including daily pain, prostrating attacks, and the effects on employment. There is nothing exceptional or unusual about her headache disability as the rating criteria reasonably describe her disability level and symptomatology. Also, she has not presented any evidence that her major depressive disorder results in a unique disability that is not addressed by the rating criteria because the criteria contemplates all aspects and levels of cognitive, social, and occupational impairment presented in this case. Neither she nor any of her attending clinicians or examiners noted any unusual symptoms not contemplated in the criteria. Moreover, as a result of this decision, the migraine headaches have been awarded an increased disability rating of 50 percent. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. Total Disability Rating Based on Individual Unemployability (TDIU) As a final point, the Board notes that, under certain circumstances, a claim for a TDIU could be considered a component of a claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the record indicates that the Veteran was working at least part time as a bartender, nurse, and teacher as well as attending school to further her professional qualifications. There no assertion by the Veteran or other evidence of record that the Veteran was no longer working or that she has been rendered unemployable due to service-connected headaches or major depressive disorder. Moreover, the VA examiner in September 2013 concluded that her symptoms do not preclude her ability to work in any capacity. Hence, the matter of the Veteran's entitlement to a TDIU as a component of the claim for higher rating need not be addressed. ORDER A 50 percent disability rating for service-connected migraine headaches is granted, subject to the applicable criteria governing the payment of monetary benefits. A disability rating in excess of 30 percent prior to September 17, 2013, and in excess of 50 percent, thereafter, for service-connected major depressive disorder, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs