BVA9507593 DOCKET NO. 92-02 464 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased evaluation for somatization disorder with headaches, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from June 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from 1991 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California. In February 1993, the Board remanded the veteran's case to the RO for additional development. The case has been returned to the Board for appellate review. Although the issue of entitlement to a total disability rating based on unemployability was certified for appellate review, in light of the decision that follows, such issue is moot and need not be addressed by the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his somatization disorder with headaches is more severely disabling than the currently assigned 50 percent rating reflects. He further argues that he is unable to work due to his service-connected disorder, and that therefore a total disability rating is warranted. He states that he is unable to obtain or maintain employment due to his headaches. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the assignment of a 100 percent schedular evaluation for the veteran's somatization disorder with headaches. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained. 2. The veteran's service-connected somatization disorder with headaches is productive of severe social and industrial impairment. 3. The veteran's service-connected somatization disorder with headaches is of such severity as to preclude him from securing or following a substantially gainful occupation consistent with his education and work experience. CONCLUSION OF LAW The criteria for a 100 percent schedular rating for the veteran's service-connected somatization disorder with headaches have been met. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § § 4.16(c), 4.132,Code 9402 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran has submitted a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim that is not implausible. The Board also finds that the evidence of record is properly developed and sufficient to fairly resolve the issue on appeal. 38 U.S.C.A. § 5107(a) (West 1991). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected disability, and has found nothing in the historical record that would lead to a conclusion that the evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability ratings are determined by applying the criteria set forth in VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § § 4.1, 4.10 (1994). The RO granted service connection for migraine headaches in August 1946, and a 10 percent rating was assigned. In August 1960, the RO characterized the veteran's disorder as anxiety reaction, chronic, mild, with conversion, manifested primarily by headaches, and a noncompensable rating was assigned. In April 1985, the Board increased the evaluation to 10 percent, and in July 1990, the RO increased the evaluation to 30 percent. In December 1991, a 50 percent rating was assigned. The veteran's disorder may be rated under the provisions of Diagnostic Code 8100 or Diagnostic Code 9402 of the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). Under Diagnostic Code 8100, a 50 percent rating is warranted for migraine headaches with very frequent prostrating and prolonged attacks productive of severe economic inadapability. In order to assign a rating beyond 50 percent under Diagnostic Code 8100, there must be an exceptional or unusual disability picture for which the schedular criteria are inadequate. 38 C.F.R. § § 3.321(b)(1), Part 4, Code 8100(1994). Under Diagnostic Code 9402, a 50 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with others is considerably impaired and where the reliability, flexibility and efficiency levels are so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation requires that the ability to establish and maintain effective or favorable relationships with people be severely impaired and that the psychoneurotic symptoms be of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent schedular rating is warranted when the attitudes of all contacts, except the most intimate, are so adversely affected as to result in virtual isolation in the community. There would be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in a profound retreat from mature behavior. In such cases, the veteran would be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Code 9402. In those cases where the sole service-connected disability is a mental disorder rated at 70 percent , the psychiatric disorder may be assigned a 100 percent schedular rating where the veteran is precluded as a result of the disability from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(c). VA outpatient treatment records show treatment of the veteran for complaints of headache beginning in 1989. Private medical records show that the veteran was treated by Craig Watson, M.D. for headaches beginning in 1989. The veteran reported in November 1989 that the frequency varied but that he was currently experiencing 2 headaches per week. He reported that he sometimes lost consciousness during headaches, and that the headaches lasted from 2 hours to 2 days. Treatment continued in 1990 and 1991, and the diagnosis remained common migraine headaches. The veteran was prescribed various medications with little relief. The veteran was examined by the VA in March 1990, and he reported that he had no major problems, no sleep or appetite problems, and that he spent his time working on his yard or visiting friends. He stated that he had headaches one to two times a week. On examination, he was cooperative with spontaneous speech, and no clinical evidence of depression. He denied homicidal or suicidal ideation. His thoughts were goal directed and there was no evidence of a thought disorder. He was well oriented, and his memory, cognition, insight and judgment were intact. The veteran reported that his headaches were quite incapacitating and that he could not make plans for the day, and was therefore unable to pursue gainful employment. Somatization disorder was diagnosed, and Global Assessment of Functioning (GAF) score of 60 was assigned. In an April 1991 letter, Dr. Watson stated that the veteran had severe and quite frequent headaches that made it unlikely that he could be employed in any sustained occupation since the headaches were frequent enough to interrupt employment. At his October 1991 personal hearing, the veteran stated that he had headaches once or twice a week, and that they lasted for from a few hours to a few days. He stated that the frequency had increased over the past few years. He also testified that he was active in church and that he belonged to several organizations, including the Elks, the Masons and the Eastern Star, but that he only attended meetings of the Masons. A complete transcript is of record. In March 1993, the veteran underwent a VA psychiatric examination, and he complained of headaches, and reported that he could not work due to his headache disorder. He also stated that more recently, it was impairing his social function. He reported that he could not schedule or plan for social engagements due to the unpredictable nature of his headaches, which occurred about twice a week and lasted from hours to days. He said that his driving was limited. On examination, the veteran denied depression. He was found to be unable to express emotions. Information intelligence was average. The examiner found that the veteran's complaints of headaches, and the nature, quality, frequency intensity and the degree of social and industrial impairment were grossly in excess of what could be expected based on migraine headache pathophysiology. Somatoform pain disorder was diagnosed, and a GAF score of 60 was assigned. The examiner noted considerable impairment in the veteran's ability to function in both social and occupational situations because of his headache disorder. The veteran also underwent a VA social and industrial survey in March 1993. It was noted that the veteran finished 3 and 1/2 years of college, and that his first wife died in 1969. He remarried in 1988, and reported no marital problems. He reported having headaches which lasted from a few hours to a few days and that the headaches are accompanied by nausea and occasional blacking out. He reported working almost all of his life as an electrician, mostly in hydro-electric power plants. He reported that after retirement, he tried to do volunteer work at a hospital, but was unable to maintain a regular schedule due to recurring headaches. He reported spending his time gardening and playing cards. It was noted that the veteran was a very social person and that he had participated in a variety of organizations in the past, but had found that more difficult currently due to the uncertainty of the onset of his attacks. The veteran was noted to be well oriented with no indication of depression or any kind of mental disorder, The examiner noted that it would appear that the veteran would have a very difficult time maintaining any kind of employment schedule given the uncertainty of onset and duration of his headache activity. The veteran also underwent a VA neurological examination in March 1993. He reported that his last headache lasted for two days, and that he took Tylenol #3 for pain. The diagnosis was migraine headaches, prostrating, occurring one to two times a week. The Board has reviewed the evidence of record, and it finds the evidence of record reflects symptomatology that more nearly approximates the severe level of social and industrial impairment contemplated by a 70 percent rating. The record indicates that the veteran has had 3 1/2 years of college and last worked in 1982, having been employed as an electrician. The record shows that he has had continuing treatment from VA and from a private physician for his headache complaints with little relief. The veteran has reported a decrease in his social functioning due to his headaches and has also reported that his headaches have affected his employability. VA examiners have assigned a GAF score of 60 on two occasions. While a VA physician has stated that there was considerable social and industrial impairment, the veteran's private treating physician has opined that the veteran is unemployable due to his service-connected disorder. Further, the VA social industrial survey report notes that the veteran would have a very difficult time maintaining any kind of employment due to his service-connected somatization disorder with headaches. Accordingly, the Board finds that the veteran is entitled to a total rating for his service-connected somatization disorder with headaches, and a 100 percent schedular rating is assigned pursuant to 38 C.F.R. § 4.16(c) (1994). ORDER A 100 percent scheduler evaluation for somatization disorder with headaches is granted under the provisions of 38 C.F.R. § 4.16(c), subject to the applicable criteria governing the payment of monetary benefits. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, (CONTINUED ON NEXT PAGE) provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.