Citation Nr: 0805010 Decision Date: 02/12/08 Archive Date: 02/20/08 DOCKET NO. 06-24 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for depression, currently rated as 30 percent disabling. 2. Entitlement to a compensable rating for thyroiditis. 3. Entitlement to an initial compensable rating for dry eye syndrome. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant/Veteran and Son ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from July 1977 to August 1980 and also served in the United States Army Reserves. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The veteran has also raised claims for service connection for erectile dysfunction and a gallbladder disorder. As those issues have not been developed or certified for appellate review, they are referred to the RO for appropriate action. The issue of entitlement to a higher rating for thyroiditis is being remanded and is addressed in the REMAND portion of the decision below. The claim is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's depression has resulted in such symptoms as excessive worry, apprehension, crying spells, sleep disturbance, inability to control his behavior, irritability, mood swings, and difficulties with memory which result in social and occupational impairment. 3. The veteran's bilateral dry eye syndrome is manifest by chronic dryness with a best corrected vision of 20/20. 4. The veteran's service-connected disabilities include depression, rated as 70 percent disabling; hepatitis C, rated as 30 percent disabling; dry eye syndrome, rated 10 percent disabling; and, thyroiditis, rated as noncompensably disabling. 5. The veteran's service-connected disabilities are of such severity as to result in the veteran being unable to secure or sustain substantially gainful employment. CONCLUSIONS OF LAW 1. Criteria for a 70 percent rating for depression have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1- 4.16, 4.130, Diagnostic Code 9434 (2007). 2. Criteria for a 10 percent disability rating, but no greater, for dry eye syndrome have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.75, Diagnostic Codes 6018, 6034, 6061-6079 (2007). 3. Criteria for a total rating based on individual unemployability due to service-connected disability have been met (TDIU). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran contends that his psychiatric disability has worsened and that he is no longer able to work as a result of his various service-connected disabilities. He also contends that his dry eye syndrome should be assigned a compensable rating. The veteran credibly testified before the Board that he has crying spells and difficulty sleeping. The veteran and his son stated that the veteran has changed as a result of treatment for hepatitis. The veteran testified that he requires eye drops twice a day. Increased Rating for Depression Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21. Vet. App. 505 (2007). The veteran's depression is currently rated as 30 percent disabling under Diagnostic Code 9434. A higher 50 percent rating is to be 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent rating requires 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. 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 is rated as 100 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9434. In July 2003, the veteran was referred for a psychiatric consult due to symptoms arising from his treatment for hepatitis C. An adjustment disorder with depression was diagnosed. A VA psychiatric evaluation in February 2004 reveals that the veteran had begun to have crying spells, was depressed and irritable. He was having marked difficulty controlling his emotions. He slept poorly and had become forgetful. He had gotten into a brief altercation at work. The psychiatrist opined that the veteran's symptoms met the criteria for diagnosis of a major depressive disorder and assigned a Global Assessment of Functioning (GAF) score of 55, indicating moderate symptoms as per the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Washington, D.C., American Psychiatric Association (1994) (DSM-IV). In April 2005, VA mental status examination revealed that the veteran was anxious and tense; his speech was pressured. The veteran was preoccupied and ruminating about his mood and difficulties with treatment for hepatitis C. His affect was restricted and his mood was depressed. He was concrete in abstractions of proverbs. His judgment and insight were poor. He was unable to remember three objects after five minutes. He was unable to perform serial threes or to spell backwards. Major depressive disorder, in partial remission, was the diagnosis. A GAF of 55 was assigned. A private psychiatrist conducted a psychiatric evaluation in February 2006. Mental status examination revealed that the veteran was hyper-verbal. The veteran reported difficulties with concentration and memory. He sounded manic even though his wife stated he was much better. He had fair insight and judgment. A manic episode secondary to Efflexor was diagnosed. A GAF score of 48 was assigned, indicating serious symptoms as per the DSM-IV. The veteran and his son, appeared and gave testimony before the Board in August 2007. The veteran reported that for the first time he had been unable to control himself at work. (T-3). He had crying spells and difficulty sleeping. (T-6). His son stated that his father was no longer the same person since he had started his treatment for hepatitis C. (T-12). The Board notes at this juncture that it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 4.3. The Board first considered whether the veteran's symptoms were consistent with the next higher rating to 50 percent. The medical evidence reveals that the veteran exhibited pressured speech; his memory was impaired; his judgment was found to be poor and his abstract reasoning effected. He was depressed and had difficulties at work and at home for all pertinent time throughout the course of this appeal. Based on those findings, the Board finds that the evidence supports assignment of the higher 50 percent rating for depression. Next, the Board considered whether the veteran's symptoms of depression were consistent with the criteria for a 70 percent rating, which requires evidence of deficiencies in most areas. In this instance, there is evidence of deficiencies at work, in his family relationships, judgment, thinking and mood. His speech is pressured and he has almost constant depression and anxiety. The veteran has reported an inability to control his emotions and, on at least one occasion, he ended up in an altercation at work due to his difficulties in controlling his emotions. He is having difficulty adapting to the stresses involved in his treatment for hepatitis C. In determining whether the criteria for a higher rating is present the Board has considered the level of impairment, not simply the presence or absence of the enumerated symptoms listed in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board has concluded that the evidence supports the assignment of a 70 percent rating for depression. A rating higher than 70 percent, however, is not for application as there is no evidence of gross impairment of thought processes, persistent delusions or hallucinations. The veteran has not exhibited grossly inappropriate behavior and is not a persistent danger to himself or others; he is oriented in all three spheres. Therefore, the evidence supports the assignment of a 70 percent rating for depression, but no more, based on a review of the schedular criteria. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Although the veteran asserts that he is totally unemployable because of his service-connected disabilities, he has not identified any specific factors which may be considered to be exceptional or unusual in light of VA's schedule of ratings with respect to his psychiatric disability. The Board has been similarly unsuccessful in locating exceptional factors. Specifically, the veteran has not required frequent periods of hospitalization for his depressive disorder and his treatment records are void of any finding of exceptional limitation due to his psychiatric disorder beyond that contemplated by the schedule of ratings. The Board acknowledges that there is a July 2007 letter from a VA physician indicating that the veteran had been unemployable for approximately eighteen months due to his depressive disorder, but the Board notes that the statement is not supported by any rationale and is inconsistent with the totality of the evidence showing that the veteran became unemployable as a result of treatment for his hepatitis coupled with his psychiatric disorder (to be further discussed below). The Board does not doubt that limitation caused by an inability to control one's emotions has an adverse impact on employability; however, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. Section 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) [noting that the disability rating itself is recognition that industrial capabilities are impaired]. Consequently, the Board finds that the 70 percent evaluation assigned in this decision specifically for the veteran's depressive disorder, which shows very severe disability in and of itself, adequately reflects the clinically established impairment experienced by the veteran as a result of his psychiatric disability. Accordingly, a rating higher than 70 percent for a depressive disorder is denied on a schedular and on an extra-schedular basis. There is no evidence to support the assignment of staged ratings. Initial Compensable Rating for Dry Eyes The veteran seeks assignment of a compensable initial rating for his dry eye syndrome. He does not contend that a disability rating should be assigned for loss of vision, but that the actual disability is the dryness and discomfort. The veteran asserts that the dryness has been consistent since he started Interferon treatment. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran's service-connected dry eye syndrome is currently evaluated as noncompensable under the provisions of 38 C.F.R. § 4.84a, Diagnostic Code 6079. This rating code is limited to loss of vision and does not take into account the veteran's actual complaint and diagnosis related to dry eyes. Ratings on account of visual impairment are to be based only on examination by specialists. Such examinations should include uncorrected and corrected central visual acuity for distance and near, with a record of the refraction. 38 C.F.R. § 4.75. In rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required. Id. The level of compensation for central visual acuity is prescribed in a table that relates the impairment of vision in both eyes, with the diagnostic code dictated by table. See 38 C.F.R. § 4.84a, Table V. The percentage evaluation for impairment of central visual acuity will be found from 38 C.F.R. § 4.84a, Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. Where vision in one eye is 20/40 and vision in the other eye is 20/40, a 0 percent rating is assigned under Diagnostic Code 6079. Where vision in one eye is 20/50 (or is 20/70, or 20/100) and vision in the other eye is 20/40, a 10 percent rating is assigned under Diagnostic Code 6079. A 20 percent evaluation will be assigned for vision in one eye of 20/200 (or 15/200), when corrected visual acuity in the other eye is 20/40 under Diagnostic Code 6077. Considering the medical evidence of record in light of the above-noted criteria, the Board finds that criteria to support a compensable rating have not been under Diagnostic Code 6079 as there is no evidence of any loss of visual acuity in the veteran's eyes that would correspond to a compensable rating under the VA rating schedule for visual impairment. See 38 C.F.R. § 4.84a, Table V. When the veteran was examined in November 2005, uncorrected distance vision was 20/30 and corrected vision was 20/20. Treatment records do not show any substantial change in the veteran's vision. In other words, the veteran's best corrected visual acuity is substantially better than the 20/50 and 20/40 best corrected vision necessary to support assignment of a 10 percent disability rating under Diagnostic Code 6079. The Board notes that the veteran has consistently complained of chronic dryness, irritation, and redness. Treatment records show that this is secondary to the veteran's treatment for his service-connected hepatitis. The symptoms of chronic dryness, irritation, and redness of the eye are also symptoms of keratoconjunctivitis. See Dorland's Illustrated Medical Dictionary, 28th Edition, p. 1077. Given the great similarity of the symptomatology, the Board finds it appropriate to evaluate the symptoms of the veteran's dry eye syndrome under Diagnostic Code 6018 for chronic conjunctivitis. Diagnostic Code 6018 provides that a 10 percent rating will be assigned for chronic conjunctivitis that is active with objective symptoms. A 10 percent rating is the highest rating assignable under Diagnostic Code 6018. The Board, therefore, finds that the assignment of a 10 percent rating, but no greater, for the veteran's dry eye syndrome is warranted. The potential application of other various provisions of Title 38 of the Code of Federal Regulations has been considered, whether or not they were raised by the veteran, as required by the holding of the Court in Schafrath v. Derwinski, 589, 593 (1991). The veteran has submitted no evidence showing that his eye impairment has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2000). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Consequently, the Board finds that the 10 percent evaluation assigned in this decision adequately reflects the clinically established impairment experienced by the veteran and a higher rating is not warranted on a schedular or extra- schedular basis. The evidence does not support assignment of staged ratings. Total Rating Based on Individual Unemployability Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). The veteran is seeking a total rating based on individual unemployability due to service-connected disability, specifically, his hepatitis and depressive disorder. As a threshold matter, the Board finds that the veteran meets the schedular criteria outlined in 38 C.F.R. § 4.16(a) as he now has service-connected disabilities including depression, rated as 70 percent disabling; hepatitis C, rated as 30 percent disabling; dry eye syndrome, rated as 10 percent disabling, and thyroiditis, rated as noncompensably disabling. A review of the claims folder reveals that the veteran's employment history includes serving as a cook in the service and as a welding supervisor in the private sector. In February 2006, the veteran advised VA that treatment for hepatitis C caused such severe complications that he had to quit his job due to his doctor's orders. A VA Form 21-4192, dated in May 2006, from the veteran's last employer, reveals that he was employed as a welding supervisor from April 1984 until February 2006, and that he was no longer working due to medical reasons. In February 2007, the veteran's private physician reported that the veteran was unable to work due to his bipolar depression and hepatitis C. That same month, a VA staff physician reported that the veteran was not employable and that his unemployability was due to his service-connected hepatitis C and major depressive disorder. A July 2007 letter from another VA physician includes the statement that the veteran had been disabled due to his service-connected depression for the last eighteen months. The medical opinions are consistent with the symptoms documented in the medical record. As such, the Board concludes that the evidence demonstrates that the veteran's symptoms of his service-connected hepatitis C and depressive disorder are of such severity that the veteran is no longer able to work. Therefore, a total disability rating based on individual unemployability due to service-connected disability is warranted. ORDER A 70 percent rating for depression is granted, subject to regulations governing the award of monetary benefits. A 10 percent rating for dry eye syndrome is granted, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND In the recent decision of Vazquez-Flores v. Peake, No. 05- 0355, (U.S. Vet. App. January 30, 2008) the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") held that for an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The Board has found the notice provided to the veteran in reference to his claim for a higher rating for thyroiditis to be inadequate under Vazquez-Flores. As such, this claim must be remanded for corrective notice. The Board also notes that in rating the veteran's thyroiditis, the RO relied only on criteria for rating hyperthyroidism. June 2004 VA treatment records document that while the veteran's interferon therapy initially resulted in hyperthyroidism, after treatment with synthyroid, his thyroid functioning was diagnosed as hypothyroid and then low normal. Thus, in readjudicating the claim, the RO should also consider the criteria for rating hypothyroidism found at 38 C.F.R. § 4.119, Diagnostic Code 7903. Accordingly, the case is REMANDED for the following actions: 1. VA must provide the veteran proper notice as instructed in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008) as to his claim for a higher rating for thyroiditis. 2. When the development requested has been completed, the case should be reviewed on the basis of the additional evidence. Readjudication should include consideration of Diagnostic Code 7903 for hypothyroidism. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case, and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to cure a procedural defect and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Kristi Barlow Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs