Citation Nr: 18153519 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 12-33 980A DATE: November 28, 2018 ORDER Entitlement to an increased initial disability for generalized anxiety disorder, presently rated as 10 percent disabling prior to September 25, 2016, is denied. Entitlement to a 50 percent disability rating for generalized anxiety disorder is granted effective September 25, 2016. Entitlement to an increased initial disability rating for generalized anxiety disorder in excess of 50 percent from September 25, 2016, is denied. Entitlement to a compensable disability rating for migraine headaches prior to December 12, 2012, is denied. Entitlement to a 50 percent rating for migraine headaches is granted effective December 12, 2012. FINDINGS OF FACT 1. Prior to September 25, 2016, the Veteran’s generalized anxiety disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 2. Effective September 25, 2016, the Veteran’s generalized anxiety disorder resulted in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; panic attacks more than once a week; impairment of short- and long-term memory disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 3. Prior to December 12, 2012, the Veteran’s migraine headaches were not prostrating in nature and well controlled by over the counter medication. 4. From December 12, 2012, the available medical evidence shows migraine headaches manifested by frequent prostrating and prolonged attacks resulting in economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for generalized anxiety disorder have not been met prior to September 25, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9400. 2. From September 25, 2016, the criteria for a 50 percent rating, but not more, have been met for generalized anxiety disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, DC 9400. 3. The criteria for a compensable disability rating for migraine headaches, were not met prior to December 12, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8100. 4. The criteria for a 50 percent rating for migraine headaches have been met effective December 12, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2002 to July 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As a matter of background, these matters came before the Board in August 2017, at which time they were remanded for further development. During the pendency of this appeal, a September 2018 rating decision granted increased ratings for both disabilities on appeal. Because those grants did not constitute a maximum grant for all periods on appeal, the issues remain on appeal. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the disabilities on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. 1. Entitlement to an increased initial disability for generalized anxiety disorder, presently rated as 10 percent disabling prior to September 25, 2017, and as 50 percent disabling thereafter The Veteran seeks ratings in excess of 10 percent prior to September 25, 2017, and in excess of 50 percent thereafter for generalized anxiety disorder (recharacterized as generalized anxiety disorder with unspecified trauma and stressor-related disorder as of September 25, 2017). The Veteran’s psychiatric disability is rated under diagnostic code 9400, which compensates for generalized anxiety disorder and applies the general rating formula for mental disorders. Under the applicable criteria, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400. A 30 percent rating is assigned 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. A 50 percent rating is assigned 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. Id. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board finds that an initial rating in excess of 10 percent should be denied, and that the increased rating of 50 percent, but no more, should be granted effective September 25, 2016. At no point should a rating in excess of 50 percent be granted. The Veteran was initially afforded a VA psychiatric evaluation in July 2010. At that he reported feeling anxious at least once daily. The episodes could last from several minutes up to several hours. He stated that he was anxious all of the time, but that he had episodes throughout the day where he was more anxious than usual. He was presently separated from his wife, but attributed that to behaviour of his wife, and not his anxiety. The Veteran was not presently seeing a mental health provider. He did not have a history of violence. He denied suicidal and homicidal ideation or intent. He did not exhibit psychotic, manic, hypomanic, obsessive or compulsive behavior. He did not have a history of alcohol or drug abuse or legal problems. He had finished one year of college and was planning on starting his second year in about a month. He reported enjoying watching movies and going to the beach. He appeared well-developed and well-nourished. He was open and forthcoming, providing his history without issue. He was polite and cooperative and maintained eye contact well. Speech and thought processes were goal directed. Behavior was normal. No psychomotor abnormalities were noted. He was oriented to all spheres. Memory function was good. Insight and judgment were good. The examiner diagnosed generalized anxiety disorder without a clear etiology. He was not found to have formal panic attacks, but rather he had multiple symptoms of recurrent anxiety. He was capable of working full time and managing his own benefits (indeed, he was not yet discharged from the Navy, with good performance to date). He was able to establish and maintain interpersonal relationships, although he did have anxiety at social functions. The examiner concluded that he did not require outpatient mental health care or psychopharmacotherapy. The Board finds that this examination report does not support a rating in excess of 10 percent. This examination report generally shows symptoms not severe enough to interfere with occupational and social functioning or require medication. At most his occupational and social impairment resulted in mild or transient symptoms. Although he did have anxiety, there was no evidence of other symptoms which would support the next higher rating such as depressed mood, panic attacks, suspiciousness, chronic sleep impairment, or mild memory loss. VA treatment records from December 2012 showed a negative suicide screen. A May 2013 social work assessment showed him alert an oriented and willing to cooperate. He reported some issues with anxiety and stress in crowded restaurants and related to the weather, but denied any issue with occupational functioning. An October 2014 psychiatric evaluation note reported some sleep issues but found him alert and oriented with good attention and concentration. His mood was friendly and calm. Affect was somewhat flat but congruent. Thought was logical and linear; judgment was fair. The examiner found no concerns with impulse control. The Board finds that these records do not support a higher rating than 10 percent. Generally speaking, these records show symptoms not severe enough to interfere with occupational and social functioning or require medication. At most his occupational and social impairment resulted in mild or transient symptoms with good occupational and social functioning. Although he did have anxiety, there was no evidence of other symptoms which would support the next higher rating such as depressed mood, panic attacks, suspiciousness, chronic sleep impairment, or mild memory loss. In September 2018 the RO issued a rating decision which granted an increased disability rating of 50 percent, effective September 25, 2017, which it states is the first date that medical evidence warrants an increase. Curiously, it does not specifically address which evidence it is referring to and a review of the Veteran’s available medical treatment records do not show any medical evidence from that date. However, on September 25, 2016, exactly one year earlier, the Veteran presented for a psychiatric evaluation due to constant worry and nervousness with psychological arousal on a daily basis. The Veteran denied formal treatment at that time. Although not clear that this is the record the RO referred to in the 2018 rating increase, it does show anxiety attacks on a daily basis and disturbances of mood. As such, affording the Veteran the benefit of the doubt, the Board will grant the increase to 50 percent one year earlier, effective September 25, 2016. An October 13, 2017, psychiatric consultation also supports a 50 percent rating. At that time he reported occasional depressed mood with some compulsions. He denied hopelessness and worthlessness or decreased concentration. Appetite and energy were ok. He denied delusions and paranoia and had no tangential or incoherent speech. Through process was logical and goal directed and he denied suicidal and homicidal ideation or intent. On November 16, 2017, the Veteran was afforded a new VA examination in connection with his claim. At that time the examiner found occupational and social impairment with reduced reliability and productivity. He reported a good relationship with his family. He was divorced, but reported building friendships with fellow veterans, although he denied having much of a social life. He reported not speaking much with his children, although he attributed that to the fact that they lived in another state and not to his disability. He reported some difficulty concentrating in school. He explicitly denied suicidal or homicidal ideation or intent. He had difficulty adjusting to civilian life due to a lack of structure. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short and long-term memory, disturbances of motivation and mood, difficulty establishing and maintaining effective social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. The Board finds that this examination supports a 50 percent rating but no greater. This examination shows regular anxiety attacks, impairment of short and long-term memory, some disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, all of which support a 50 percent rating under the diagnostic criteria. The Board has reviewed the evidence to see if at any point a higher rating is warranted, but finds it is not. Although the record in November 2017 showed symptoms affecting work, mood and school, there is no indication that it affected “most areas” to include family relations, thinking, or judgment. Further, he did not exhibit the type of symptoms which would support a 70 percent rating such as suicidal ideation (he has consistently denied this); 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; spatial disorientation; neglect of personal appearance and hygiene; and the inability to establish and maintain effective relationships. As such, the Board finds that a rating in excess of 50 percent is not warranted for any period on appeal. Finally, the Board notes that at no point has the Veteran exhibited total occupational and social impairment such as persistent delusions or hallucinations, gross impairment in thought process or communication (indeed, his communication has consistently been good); grossly inappropriate behavior; disorientation to time or place; memory loss of the Veteran’s own name or name of close relatives. He has never been found to be a danger to himself or others. Thus, a total rating in not appropriate at any point on appeal. In sum, the Board finds that a 50 percent rating should be granted effective September 25, 2016, one year prior to the current grant, but that a rating in excess of 10 percent prior to that date should not be granted. Likewise, a rating in excess of 50 percent from September 25, 2016, should not be granted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to an increased initial disability rating for migraine headaches, presently rated as noncompensable prior to February 6, 2013, and as 30 percent disabling thereafter The Veteran seeks an increased initial disability rating for migraine headaches, presently rated as noncompensable prior to February 6, 2013, and as 30 percent disabling thereafter is denied The Veteran’s migraine headaches are presently rated under Diagnostic Code 8100, which compensates for migraines. Under the applicable diagnostic criteria, a noncompensable rating is assigned for migraines with less frequent attacks. A 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months. Finally, a 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. After careful review, the Board finds that the initial noncompensable rating should be upheld, but that a 50 percent rating should be granted effective December 12, 2012. The Veteran was initially examined in August 2010. At that time, he reported migraines for the prior 6 years. He reported generalized photophobia and nausea with his headaches. He reported having headaches on an average of one time per day, lasting up to two days at a time. He treated his migraines with over the counter ibuprofen and denied any symptoms associated with the condition beyond photophobia and nausea. The Board finds that this examination does not support a compensable rating. Although his headaches occurred frequently, if not daily, there is nothing in the record to indicate that his headaches were prostrating in nature, meaning of such a severity that they resulted in extreme weakness and require laying down for an extended period of time. Under the diagnostic criteria, for a compensable rating to be assigned, his headaches must have been prostrating in nature, which is not the case in this matter. Effective December 12, 2012, the Board finds that the Veteran’s headaches should be granted a 50 percent rating for frequent prostrating headaches resulting in economic inadaptability. As of that date, the Veteran’s VA treatment records show that his headaches were noted to be worsening, lasting 1-2 days at a time with sensitivity to light and sound. Shortly thereafter, on January 18, 2013, he was noted to have severe pulsating migraine headaches lasting 3-4 days at a time, that were prostrating in nature and accompanied by photophobia and phonophobia. The February 6, 2013, VA treatment record which the RO used to grant the increased rating merely incorporated these prior findings. On May 21, 2013, the Veteran’s headaches were severe, occurring several times per week with nausea and light sensitivity. At that point he noted that he was required to miss work due to his headaches, which resulted in conflict with his employer. The Veteran was afforded a VA examination in August 2018. The examiner found prostrating headaches, lasting 1-2 days at a time. With light and sound sensitivity and nausea. Although the examiner stated that he had prostrating attacks less frequently than every two months, it was also noted that the Veteran had missed up to 4 weeks of work in the prior 12 months due to his headaches, requiring use of non-paid Family Medical Leave Act (FMLA) leave. At the very least, this shows headaches occurring regularly with prostrating attacks causing economic inadaptability. As such, the Board will afford the Veteran the benefit of the doubt and assign a 50 percent disability rating for migraine headaches effective December 12, 2012. Prior to that date, a compensable rating is not supported by the record. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. James L. March Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel