Citation Nr: 1107316 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 06-25 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 30 percent for depression and mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from February 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the RO in Muskogee, Oklahoma. Although the Veteran has submitted evidence of a medical disability and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. The Veteran reports that he is retired. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to service- connected disabilities has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). FINDING OF FACT For the entire period on appeal, the evidence fails to establish that the Veteran's depression and mood disorder has resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for depression and mood disorder have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.326, 4.130, Diagnostic Code (DC) 9411 (2010). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A pre-adjudication notice letter provided to the Veteran in September 2004 met the VCAA notice requirements listed above. Further, a follow-up letter in May 2006 met the Dingess requirements. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him in the procurement of outpatient treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In compliance with its duty to assist, the RO and AMC associated the Veteran's VA outpatient treatment records, a private medical opinion, and scheduled two specific VA examinations in February 2005 and December 2009 regarding the issue at present. The Veteran was provided with a VA examination relating to his depression and mood disorder in February 2005. The Board acknowledges that the Veteran's argument that the February 2005 VA examination is too old to base a decision on, and that the disability has worsened. The matter was Remanded in August 2009, in part, to provide the Veteran a new examination. Such an examination was scheduled in December 2009. The Veteran failed to report for this examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, illness of the Veteran, or illness or death of a family member. 38 C.F.R. § 3.655. In December 2010, the Veteran was furnished a supplemental statement of the case (SSOC) containing the provisions of 38 C.F.R. § 3.655. The SSOC also specifically noted that the Veteran had failed to report for his 2009 examination, that the evidence from that examination could have been material to his claim, and that VA would be limited to considering the evidence of record. The Veteran has not made an attempt to explain to the RO why he failed to report for the scheduled VA examination relevant to these claims. Thus, since the Veteran failed to appear to his scheduled examination in December 2009, without offering any explanation for his failure to cooperate, the Board has no alternative but to evaluate the claim for increase based on the evidence of record. See 38 C.F.R. § 3.655 (2010). With respect to the February 2005 examination report, the Board notes that the examiner indicated that he had reviewed the Veteran's claims file. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability under the applicable rating criteria. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant facts. Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Initial Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. §1155 (West 2002); 38 C.F.R. § Part 4 (2010). When rating a service- connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2010). In this case, throughout the rating period on appeal, the Veteran has been assigned a 30 percent rating for depression and mood disorder. He contends that his symptoms are of such severity as to warrant an increased rating. Depression and mood disorders are evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9411. In order to be entitled to the next-higher 50 percent rating, the evidence must show decreased occupational and social impairment with reduced reliability and productivity due to such symptoms as the following: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty understanding complex commands; impairment of short term 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. The Board acknowledges that some signs of flattened affect, anxious mood, and a dislike for social interaction are present; however, after a thorough review of the entire claims file, the Board finds that the totality of the evidence fails to support the assignment of a higher (50 percent) rating. In reaching its conclusion, the Board has considered the February 2005 VA examination report as well as VA outpatient treatment records and a private medical opinion, which related his depression to his tinnitus disability. Regarding the Veteran's affect, the February 2005 VA examiner indicated that the Veteran's mood was blunted. He was not overly spontaneous in conversation but did answer questions asked. He did not volunteer a lot of information about himself. The examiner noted that he was tearful at times but was able to maintain composure. Similarly, an April 2008 VA psychiatrist noted that he was tearful when revealing some of the traumatic events he experienced in service. Regarding disturbances of motivation and mood, the evidence shows some anxiety and sadness but the February 2005 VA examiner remarked that there was no evidence of overt anxiety. A July 2006 VA outpatient treatment record indicated that the Veteran complained of feeling sad and that it was easy to cry. Next, during a July 2006 VA posttraumatic stress disorder (PTSD) screen, the Veteran answered "yes" to questions including whether he experienced nightmares, tried to avoid situations that reminded him of his past traumatic experience, was constantly on guard, watchful or easily startled, and felt numb or detached from others, activities, or his surroundings. Then, during the same screening, he answered "no" to feeling down, depressed, or hopeless as well as a question regarding whether he had little interest or pleasure in doing things. In fact, the VA outpatient treatment record indicated a negative depression screen. A July 2007 VA mental health evaluation indicated that his mood was anxious. Additionally, at the July 2007 VA mental health evaluation, he reported that he gets anxious around groups of people but that he does not get anxious every day. In April 2008, a VA psychiatrist noted the Veteran appeared to be somewhat anxious and fidgety. The psychiatrist also noted that he had a depressed and anxious mood with appropriate affect to content of thought. Next, VA outpatient treatment records in August 2008 and April 2010 indicated that his depression was stable. Regarding relationships, the Veteran reported to the February 2005 VA examiner that he had been married for 35 years and that his marriage relationship was good. He reported that he was self-employed and that previously he owned a convenience store for 14 years. He reported that his mental health symptoms did not affect his employment. A March 2007 VA outpatient treatment record confirmed that he worked for himself. During a July 2007 VA mental health evaluation, he reported that his relationship with his wife and daughters was good. He indicated that he had been married for 40 years. He reported that his hobbies included riding his motorcycle but that he did not socially interact with others outside of his family. An April 2008 VA mental health note, he reported that he was unable to get along well with people including his family members. A November 2010 VA outpatient treatment record indicated that he had retired since his last visit. He never reported that his self-employment or retirement was due to difficulty interacting with others or otherwise due to his mental disorders. Regarding speech, the February 2005 VA examiner noted that the Veteran was cooperative and polite in the interview, speech was goal directed, and no looseness of association was noted. Notably, the February 2005 report was absent any reference to circumstantial, circumlocutory, or stereotyped speech. Similarly, in a July 2007 VA mental health evaluation, the VA psychologist noted a normal rate and rhythm of speech. Remaining VA outpatient treatment records do not indicate circumstantial, circumlocutory, or stereotyped speech. Regarding panic attacks, the evidence does not indicate panic attacks more than once a week. As noted above, the Veteran reported at a July 2007 VA mental health evaluation that he gets anxious around groups of people but that he does not get anxious every day. In April 2008, he reported that he avoids crowds and is not able to go into crowds where he becomes anxious and has panic attacks. Next, the VA examination and VA outpatient treatment records failed to show difficulty understanding complex commands, impaired judgment, or impaired abstract thinking. Specifically, an April 2008 VA psychiatrist noted that his flow of thought was logical and sequential without any formal thought disorder. The April 2008 psychiatrist also noted that his cognition was grossly intact and he was alert and oriented to time, place, and person. Regarding impairment of short term and long term memory, the July 2007 VA mental health evaluation indicated that his memory was good in all three spheres (immediate, recent and remote). Additionally, the April 2008 VA psychiatrist noted that his long- term memory, short-term memory, including immediate recall, were good. The remaining VA outpatient treatment records and examination report do not indicate any impairment with his memory. The Board has also considered other criteria including the Veteran's report of chronic difficulty sleeping in February 2005. A September 2006 outpatient treatment record reflected that his depression was treated with medication (20 mg fluoxetine, also known as Prozac). In April 2008, his medication was increased to 40 mg but by November 2010, he reported that he was once again taking 20mg. As mentioned above, the Veteran underwent a VA mental health evaluation (not for compensation purposes) in July 2007. At that time, he reported that he did not sleep well at night and tossed and turned. He denied mania and reported that he took 20 mg of Prozac daily to treat his depression and irritability. He rated his depression at 6 out of 10 and denied suicidal ideations. He denied obsessive compulsive disorder and schizophrenia. He indicated that he had a normal appetite but did not follow a diet for high cholesterol. He reported that his energy level was not very good. Further, at the July 2007 VA mental health evaluation, the VA staff nurse noted that the Veteran was groomed appropriately, maintained good eye contact, and had a tense posture and a steady gait. He was logical and had no delusions. He denied any audio visual hallucinations. He denied any suicidal or homicidal ideations and was at no risk for wandering. He was diagnosed with depression not otherwise specified. An April 2008 VA mental health note indicates that the Veteran was unable to sleep, had nightmares, and was depressed. At that time, the Veteran also reported waking up with cold sweats and flashbacks due to nightmares and dreams, that he does not feel rested, becomes irritable, and dysphoric. He denied any mania, hypomania, or any phobic symptoms. He denied any obsessive- compulsive disorder symptoms. He reported taking 20 mg of Prozac daily but that it was no longer helping him very much. He was self-employed as a welder at the time of the appointment. In April 2008, the VA psychiatrist noted that the Veteran appeared to be his stated age, and was moderately built and obese. The examiner further noted that, dressing and grooming were neat and appropriate. He was cooperative, coherent and relevant. He made good eye contact during the interview. He denied any suicidal or homicidal ideations. He denied any perceptual distortions or delusional ideations. The April 2008 VA psychiatrist diagnosed depressive disorder not otherwise specified, anxiety disorder not otherwise specified, and rule out PTSD. The psychiatrist noted his Axis IV assessment as moderate due to social, family, life stressors, depression and PTSD symptoms. The psychiatrist increased his Prozac dosage to 40 mg daily and added another medication (trazodone 50 mg) to sleep at night. An August 2008 VA outpatient treatment record indicates that the Veteran's depression was stable. Likewise, an April 2010 outpatient treatment record indicated that the Veteran's depression was stable and that he declined to see a mental health counselor. Further, a separate April 2010 VA outpatient treatment record indicated that he was only taking 20 mg of Prozac daily, which was a reduction from the 40 mg daily he was prescribed in April 2008. A November 2010 VA outpatient treatment record indicated that the Veteran retired since his last visit. He also reported no suicidal ideations. At that time, he reported that he was taking 20 mg daily of Prozac. Next, the Board has considered the Global Assessment of Functioning (GAF), a scale used by mental health professional and reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. The scale may be relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV)). In this case, the evidence of record demonstrates a GAF score of 61-70 in February 2005. A score of 61-70 illustrates some mild symptoms (e.g. depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g. occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. See DSM-IV. Thus, in addition to the specific symptomatology discussed above, the Board finds that the reported GAF scores do not support a rating in excess of 30 percent. In July 2007 and April 2008, he had GAF scores of 60. A GAF of 51 to 60 indicates moderate symptoms (e.g., flattened 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). See DSM-IV. In consideration of the above, the Board does not find that a rating in excess of 30 percent is not warranted. While the Veteran's symptoms cause some impairment, they do not cause the impairments contemplated by the next-higher 50 percent rating criteria. Although the evidence shows that he had blunted mood, some sadness, and some anxiety with crowds, it does not show that he has circumstantial, circumlocutory, or stereotyped speech, experiences panic attacks more than once per week, short term or long term memory loss, impaired judgment, difficulty understanding complex commands, or impaired abstract thinking. There is simply no evidence, when viewed in its aggregate, that the Veteran's depression and mood disorder has resulted in occupational and social impairment with reduced reliability and productivity. The totality of the evidence simply does not support such a finding. Hence, a 50 percent rating is not warranted at this time and the Board finds that the Veteran's depression has manifested symptomatology that more nearly approximates the criteria for a disability rating of 30 percent under DC 9411. Next, the Board has also considered the Veteran's statements and sworn testimony. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disability. Finally, the disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular 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 Veteran's 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 present, 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 extraschedular rating. Id. In this case, there has been no showing that the Veteran's disability picture for his depression and mood disorder could not be contemplated adequately by the applicable schedular rating criteria discussed above. The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating adequately describes the severity of the Veteran's symptoms for this disability during the period of appeal. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment. Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111. In conclusion, the Board finds that the Veteran's symptoms do not more nearly approximate the criteria for a disability rating of 50 percent. As the preponderance of evidence is against his claim, the appeal is denied. ORDER An initial rating in excess of 30 percent for depression and a mood disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs