Citation Nr: 1455266 Decision Date: 12/16/14 Archive Date: 12/24/14 DOCKET NO. 11-05 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for unspecified mood disorder. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from February 1973 to November 1974. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA" and Veterans Benefit Management System (VBMS)) file, as well as the evidence in his physical claims file. The record before the Board can reasonably be construed to include a request for a TDIU. The Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) noted that a request for TDIU is not a separate claim for benefits and is best analyzed as a request for an appropriate disability rating as part of the claim for increased compensation. In this case, the RO has not had the opportunity to determine whether the Veteran meets the criteria for a TDIU. As such, the Board finds that it is appropriate to separate the adjudication of the scheduler disability rating for the Veteran's service-connected unspecified mood disorder from the adjudication of TDIU. See Rice, at 455, n.7 (2009) (noting that is permissible for the Secretary to bifurcate TDIU from the adjudication of an increased rating claim in appropriate circumstances). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Service connection has not been established or claimed for a reported "cognitive disorder." The psychiatric symptoms that examiners have attributed to his psychiatric disorder will be discussed herein. FINDING OF FACT At its worst, the Veteran's unspecified mood disorder was manifested by occupational and social impairment with reduced reliability and productivity; it was not manifested by occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for an evaluation of 50 percent, but not greater, for unspecified mood disorder, have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1 , 4.7, 4.130, Diagnostic Code 9435 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for mood disturbance with anxious, depressive, and sleep disturbances. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that in July 2014, the RO corrected the diagnosis for the Veteran's service-connected mental condition to unspecified mood disorder. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Codes 9411-9440, a mental condition that has been formally diagnosed, but the symptoms of which are not severe enough either to interfere with occupational and social function or to require continuous medication warrants a 0 percent evaluation. A 10 percent rating requires 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. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (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, and mild memory loss (such as forgetting names, directions, recent events). The next higher rating of 50 percent also requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. The maximum rating of 100 percent requires total occupational and social impairment due to such symptoms as: 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the Mauerhan case, the Court of Appeals for Veterans Claims (Court) rejected the argument "that the DSM-IV criteria should be the exclusive basis in the schedule governing ratings for PTSD." See Mauerhan, 16 Vet. App. at 443. Rather, distinctive PTSD symptoms in the DSM-IV are used to diagnosis PTSD rather than evaluate the degree of disability resulting from the condition. Although certain symptoms must be present in order to establish the diagnosis of PTSD, as with other conditions, it is not the symptoms but their effects that determines the level of impairment. Id. The Veteran underwent VA examination in February 2009 at which time he reported difficulty with depression, procrastination, decreased self-esteem, generalized anxiety, occasional panic attacks, and bad dreams about his military stressor experiences. The Veteran reported a history of some suicidal thinking but denied any active plan or history of attempts. The Veteran reported that he generally went to bed at 10:00 p.m. but experienced midnight awakenings beginning at 1:30 a.m. that thereafter his sleep was unrestful. The examiner noted that the Veteran had begun mental health treatment after a behavioral health evaluation, that he was taking Diazepam and Ambien for sleep, and that he reported continuous symptoms of anxiety and sleep disturbance with no remissions during the prior year. The examiner noted that the Veteran denied any problems with alcohol or substance abuse and reported no recent inappropriate behavior. The examiner noted that the Veteran's thought processes and communication showed some mild deficits of working and short-term memory but were otherwise grossly intact and that social functioning was grossly intact for basic skills. The examiner noted that the Veteran reported being anxious at times and that he was somewhat isolative. The Veteran reported that he was employed in real estate and loan closing and that until the economic downturn, he was generally doing well in the business and that prior to that, he had a 20 plus year history of sustained work in the food and beverage business. The examiner noted that post military stressors included financial concerns, limited support system, chronic physical problems and pain, and relationship issues. The examiner diagnosed the Veteran as having mood disturbance, not otherwise specified, mild with anxious, depressive and sleep disturbance and assigned a Global Assessment of Functioning (GAF) score of 59. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). According to DSM-IV, a GAF score of 51 to 60 indicates the examinee has 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 coworkers). In VA treatment records from February 2009 to June 2014, providers consistently assigned a GAF of 45. According to DSM-IV, a GAF score of 41 to 50 indicates the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or a serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A February 2009 Behavioral Health Lab Note noted that the Veteran reported more than half the days having little interest or pleasure, feeling down or hopeless, being tired and having low energy, having feelings of failure/guilt, having trouble concentrating. The Veteran also reported having trouble sleeping nearly every day. The Veteran also had thoughts of wanting to take his own life, had thoughts that life was not worth living, and had thoughts that there was a time that he wished he was dead such as going to sleep and not waking up. The Veteran, however, did not report seriously considering suicide. On mental health examination, the Veteran was alert and oriented times three, cooperative and reasonable, and his grooming was appropriate. His speech was normal, his language was intact, and his insight and judgment were good. There was no perceptual disturbance, no unusual thought content, and his thought process and association were normal and coherent. The Veteran's affect was flat, his mood was anxious and depressed, and his remote memory was impaired. From March 2009 to June 2014, the Veteran had intrusive thinking, mild to moderate depression and moderate anxiety/irritability. In April 2009, he described a lack of energy and motivation. He acknowledged having feelings of helplessness, hopelessness, and becoming emotional and tearful. The Veteran's affect was flat, depressed, and anxious. He reported shadows and movement in his peripheral vision. An April 2009 mental health individual psychotherapy note assessed the Veteran with depression, moderate, severe, chronic. In May 2009, the clinical social worker noted that due to his severe MDD, the Veteran was unable to establish and maintain relationships and that his ability to continue to maintain self-employment was highly questionable. The provider also noted that he felt that the Veteran's MDD met the criteria for a disability rating of 50 percent. In May 2009, the RO received a letter from the Veteran's treating psychiatrist and his clinical therapist. The letter noted that the Veteran was being seen for treatment of major depressive disorder and that due to the severity of his depressive symptoms, he continued to have episodes of isolation and difficulty with concentration and memory. The Veteran continued to be easily agitated and angered and that he continued to struggle with a lack of energy and motivation. The Veteran compared himself with others who he considered to be more successful. The Veteran also described fleeting thoughts of death without a plan and acknowledged having married four times sometimes blaming himself for the failed marriages. The providers stated, It is felt due to the severity of his depressive symptoms he continues to experience difficulty in the area of employment, family relationships, judgment, thinking, and mood. It is felt he does meet criteria for a disability rating of 50%. Even with his medication he continues to struggle with depression on a daily basis. GAF is 45. In a February 2010 letter, the Veteran's treating VA staff psychiatrist and clinical therapist noted that the Veteran continued to have severe depressive symptoms that seemed to worsen at times even with his prescribed medication. It was noted that an MRI completed in June 2009 revealed moderate cerebral/cerebella volume as likely as not related to chemical experiments at Edgewood Arsenal, Maryland while in the service. It was noted that the Veteran continued to complain of memory loss and overall decreased social/occupational functioning. In addition to reiterating the Veteran's symptoms noted in the May 2009 letter, the providers stated, It is felt due to the severity of his depressive symptoms he continues to experience difficulty in the area of employment to where he is unable to maintain gainful employment, family relationships are strained, judgment, thinking, and mood is impaired. Due to the severity of his Depressive symptoms it is felt he is unable to work even in a loosely supervised work environment, it is felt he does meet criteria for permanent unemployability. Even with his medication he continues to struggle with depression on a daily basis. His current GAF is 45. The Veteran underwent VA examination in October 2010 with the same VA staff psychiatrist who conducted the February 2009 VA examination. After mental status examination and review of the claims file, the examiner diagnosed the Veteran as having mood disturbance not otherwise specified with anxious and depressive symptoms and sleep disturbance, mild, which was at least as likely as not, 50% probability, associated with situations first experienced during military service associated with volunteering for experimental testing. The examiner also diagnosed the Veteran as having Cognitive Disorder NOS which she found "less likely as not 50% probability" associated with military situations. The examiner found that the Veteran's increase in depressive symptoms were associated with ongoing physical problems and pain, marital tensions, and other situational stressors, financial concerns/unemployment. The examiner stated, "In my opinion, it is less likely as not, 50% probability, that the veteran's increase in mood disturbance is associated with situations first experienced during military service but it is associated with current situational stressors." The examiner stated, Per review of exam by Dr. Oboler in January 2009, there was no definitive link between the compounds that the veteran was exposed to during experimental testing and long-term development of nervous or sleep disorders. The body of literature shows that participation in experimental testing can result in long-term physiological effects associated with nervous disorder due to volunteering and sleep disorder due to volunteering. In an August 2010 Mental Health Medication Management note, the Veteran's treating psychiatrist recommended a 100-percent disability evaluation and noted, He continues to have major problems with short-term memory loss - MRI revealed significant cerebral/cerebellar volume loss - a very unusual pattern - which is likely due to exposure to experimental toxins given to the patient in experiments at Edgewood Arsenal in Maryland while in the military. ... The findings that both his cerebrum and [] cerebellum showed volume loss implicates damage from some sort of toxin. In my career I have rarely seen both cerebral and cerebellar volume loss together, especially at this relatively early age. An April 2011 Mental Health Note indicates that the Veteran reported that he was still struggling with the symptoms of nightmares that he experienced and that one of the nightmares was so frightening that he lost control of his bowels and urinated on himself. In a January 2013 letter, the Veteran's treating psychiatrist noted that he reported a history of sleep disturbance and nervousness as well as ongoing low level symptoms of anxiety and depression. The psychiatrist noted that the Veteran was in counseling and took psychotropic medications and that the interventions had been helpful but there had been no remissions during the past year. The psychiatrist noted that the Veteran was able to maintain activities of daily living including his personal hygiene but he reported performing some tasks on a variable basis due to pain and mood. Diagnoses included mood disturbance not otherwise specified with anxious and depressive symptoms and sleep disturbance, mild, and cognitive disorder NOS. The psychiatrist noted that it was at least as likely as not that the mood disturbance with anxious and depressive symptoms was associated with military situation but that the cognitive disorder was less likely as not associated with military situations. The psychiatrist indicated that the cognitive dysfunction may be secondary to previous exposure to toxins but may also be related to development of sleep apnea or other medical problems such as strokes or TIAs which the patient had had and caused brain damage. The psychiatrist also noted that it was his opinion that the Veteran did not meet the criteria for PTSD. The Veteran underwent VA examination in May 2014 at which time the Veteran reported feeling depressed two times per week lasting all day, anhedonia, feelings of low self-worth, low energy and motivation, and low interest in socializing. The Veteran reported that he was generally able to obtain six to seven hours of sleep per night. The Veteran reported daytime fatigue and nightmares about people in white coats from the arsenal. The Veteran reported feeling nervous making his back hurt and making it difficult to breathe. The Veteran reported frequently becoming anxious and chewing the skin around his nails. On mental status examination, the Veteran's affect was depressed, his mood was mildly depressed and his energy level was low. The examiner noted that his thought processes were goal directed and logical but word-finding problems were apparent. Neuropsychological testing was conducted in June 2014, and the Veteran failed nine separate measures designed to formally assess the level of effort applied to testing. Statistically, his performance was consistent with purposeful exaggeration, not any genuine cognitive deficits. The evaluator concluded that no evidence existed to support cognitive dysfunction due to toxin exposure. The examiner diagnosed the Veteran as having unspecified mood disorder. The examiner stated that the Veteran's unspecified mood disorder symptoms appeared to be mildly interfering with his functioning. The examiner stated that the signs and symptoms were transient or mild and that there was decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The Board initially finds that the Veteran's reported cognitive disability is not part and parcel of his service-connected psychiatric disorder. It is noted that service connection for this pathology has not been established or claimed. As such, evaluation herein concerns clearly identified psychiatric symptoms medically attributed to his psychiatric disorder. The GAF scores of 45 assigned by treating mental health professions included the diminished functioning caused by reported symptoms of cognitive disorder. In addition, the GAF score of 59 assigned by the VA examiner in October 2010 also included the diminished functioning caused by a cognitive disorder. Although the February 2009 GAF score of 59 did not include a cognitive order in its assessment, it is inconsistent with the examiner's assessment that the Veteran's mental disorder signs and symptoms were mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Thus, the GAF scores assigned in this case are afforded very little probative value, but are not inconsistent with the conclusion reached herein. As such, the Board must rely on the Veteran's actual symptoms of his service-connected unspecified mood disorder. As noted above, the Veteran reported depression, sleep disturbance with nightmares, decreased self-esteem, anxiety, irritability, occasional panic attacks, lack of energy, lack of motivation, feelings of helplessness, feelings of hopelessness, some suicidal thinking without active plan or history of attempts, and being somewhat isolative. In addition, on VA examination, the Veteran consistently demonstrated flat affect and anxious and depressed mood. Although the Veteran's depression has been twice noted to be severe in April and May 2009, VA treatment records consistently indicate mild to moderate depression and moderate anxiety/irritability. In addition, although the clinical social worker in May 2009 indicated that the Veteran was unable to establish and maintain relationships and that his ability to continue to maintain self-employment was highly questionable due to his MDD, he also noted that he felt that the Veteran's MDD met the criteria for a disability rating of 50 percent. Further, although the treating mental health care providers noted in February 2010 that due to the severity of his depressive symptoms, it was felt that the Veteran was unable to work even in a loosely supervised work environment, and that even with his medication, he continued to struggle with depression on a daily basis, the Veteran reported in May 2014 feeling depressed two times per week lasting all day. In addition, the May 2014 VA examiner stated that the Veteran's unspecified mood disorder symptoms appeared to be mildly interfering with his functioning. The examiner stated that the signs and symptoms were transient or mild and decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Carefully considering all the medical evidence of record, the Board finds that at its worst by resolving all doubt in favor of the Veteran, his mood disturbance not otherwise specified with anxious and depressive symptoms and sleep disturbance has been manifested by occupational and social impairment with reduced reliability and productivity. Accordingly, the Board finds that the record supports an evaluation of 50 percent. The Board does not, however, find that the Veteran's mood disturbance alone has been manifested by occupational and social impairment with deficiencies in most areas. As set forth above, the criteria for an evaluation in excess of 50 percent are met when the Veteran experiences total occupational and social impairment, which is clearly not demonstrated in this case. Although the Veteran has had fleeting thoughts of death, there was never any indication of suicidal ideation during therapy sessions or on VA examination. In addition, there has not been any indication of obsessional rituals that interfere with routine activities; illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. Although the Veteran was on his fourth marriage at the time of his May 2014 VA examination and described the relationship as estranged, he reported that he had two sons from his third marriage with whom he had regular contact. The Veteran also reported that socially he had one friend. Thus, although the Veteran is isolative, there is not an inability to establish and maintain effective relationships. In addition, there has never been any indication of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living, disorientation as to time or place, or memory loss for names of close relative, own occupation or own name. The Board is aware that an extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008); see Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); see Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2008). In the present case, the Board finds no evidence that the Veteran's service-connected unspecified mood disorder presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) . The criteria pertaining to depressive disorders in the Rating Schedule focus on exact symptoms described by the Veteran during his VA mental health appoints and examinations. Thus, it appears that the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. Based on all the evidence of record, the Board finds that the Veteran's service-connected unspecified mood disorder approximates the schedular criteria for a 50 percent rating over the entire course of the appeal, but does not approximate the schedular criteria for a rating higher than 50 percent for any period of time on appeal. ORDER Entitlement to an initial evaluation of 50 percent, but no higher, for unspecified mood disorder is granted subject to the law and regulations governing the payment of monetary benefits. REMAND As noted above, a request for TDIU has been reasonably raised by the evidence of record. Rice, 22 Vet. App. at 447. The TDIU claim, however, has not been adequately developed for Board review. Consideration should be on a schedular or extraschedular basis, as appropriate. Accordingly, the case is REMANDED for the following action: The case should be reviewed on the basis of the additional evidence. Consideration of a TDIU should also be undertaken, complete with all notice and development indicated. Consideration on a schedular or extraschedular basis is warranted. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs