Citation Nr: 0810761 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 02-07 030 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for an adjustment disorder with mixed emotion, anxiety and depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), to include whether the claim should be referred to the Director, Compensation and Pension Service. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from November 1990 to April 1991, plus had prior periods of active duty for training (ACDUTRA). These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2001 decision of the RO that granted service connection for an adjustment disorder with mixed emotion, anxiety and depression, evaluated as 30 percent disabling effective June 1998. The veteran timely appealed for a higher initial disability rating. These matters also came to the Board on appeal from an October 2002 decision that denied entitlement to a TDIU. In September 2003, December 2005, and March 2007, the Board remanded the matters for additional development. FINDINGS OF FACT 1. Since the effective date of service connection, the veteran's adjustment disorder with mixed emotion, anxiety and depression, has been manifested by symptoms that reflect no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; circumstantial or stereotyped speech, panic attacks, difficulty in understanding complex commands, impaired memory, impaired judgment, and impaired abstract thinking have not been demonstrated. 2. Service connection is in effect for adjustment disorder with mixed emotion, anxiety and depression, rated as 30 percent disabling; and for lumbar strain with secondary back myositis, degenerative osteoarthritis of the spine, and left L4-L5 radiculopathy, rated as 30 percent disabling. The combined disability rating is 50 percent. 3. The veteran has not worked since 1997; he has work experience as a salesman and manager for a local newspaper; and he has at least 16 years of education. 4. The veteran's service-connected back disability is severe enough to suggest that that he is unable to obtain or retain gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for an adjustment disorder with mixed emotion, anxiety and depression have not been met at any time since the effective date of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9440 (2007). 2. The criteria for the submission of the claim for a total rating for compensation purposes based on individual unemployability to the Director, Compensation and Pension Service, are met. 38 C.F.R. § 4.16(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). Through August 2002, August 2004, December 2005, and March 2007 letters, the RO or VA's Appeals Management Center (AMC) notified the veteran of elements of service connection, the evidence needed to establish each element, evidence of increased disability, and evidence needed to award a TDIU. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. In the June 2006 supplemental statement of the case (SSOC), the RO or AMC specifically notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the veteran has appealed for a higher initial disability rating assigned for a service-connected adjustment disorder. Hence, the Board has characterized the issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson held that a claim for an initial disability rating is distinct from a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are not applicable to the present claim. Defects as to the timeliness of the statutory and regulatory notice also are rendered moot in this case, because the veteran's claims have been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO has obtained copies of the veteran's service medical records and outpatient treatment records, and has arranged for the veteran to undergo VA examinations in connection with the claims on appeal, reports of which are of record. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability there from, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2007). Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A. Adjustment Disorder With Mixed Emotion Anxiety and Depression With Depressed Mood The RO has evaluated the service-connected adjustment disorder with mixed emotion anxiety and depression under 38 C.F.R. § 4.130, Diagnostic Code 9440, as 30 percent disabling. The actual criteria for rating psychiatric disabilities other than eating disorders are contained in a General Rating Formula. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation), 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). A 50 percent rating is assigned when there is 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for 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 which 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. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. During a July 1997 VA examination, the veteran reported problems trying to concentrate, despite medical treatment. Examination revealed that his attention, memory, and concentration were good; his affect was blunted. His speech was clear and coherent. The veteran was not hallucinating, and was not suicidal or homicidal; his insight and judgment were fair. The examiner diagnosed dysthymia with anxiety features. A global assessment of functioning (GAF) score of 75 was assigned. The reports of a January 2001 VA examination and an October 2001 addendum reflect that the veteran was alert, coherent, adequately dressed, and well groomed. He neither seemed anxious nor depressed, and his thoughts were expressed in a logical and coherent manner. His mood seemed euthymic throughout the interview, and no emotions were observed; affect was appropriate to thought content. The veteran complained of sleep difficulties, and reported having nightmares and hearing voices call his name or scream. He admitted to suicidal thoughts in the past. The Axis I diagnoses included generalized anxiety disorder, and adjustment disorder with mixed emotion (anxiety and depression, secondary to chronic low back pain). A GAF score ranging from 51 to 60 was assigned. During a September 2004 VA examination, the veteran reported episodes of feeling sad, depressed, irritable; and with loss of energy, insomnia, anxiety, tension, and loss of interest in daily living activities. These episodes lasted for several days. The veteran reported no past history of psychiatric hospitalization. Examination revealed that the veteran was appropriately dressed, cooperative, alert, and in contact with reality. There was no evidence of psychomotor retardation or agitation. His thought process was coherent and logical. There was no looseness of association, and no evidence of disorganized speech. There was no evidence of delusions or hallucinations. The veteran had no phobias, no obsessions, no panic attacks, and no suicidal ideas. His mood was depressed and anxious. His affect was constricted and appropriate. His memory was intact. His current symptoms moderately interfered with the veteran's employment functioning and social functioning. The examiner diagnosed an adjustment disorder with mixed anxiety and depressed mood. No other mental disorder was found. A GAF score of 60 was assigned. The report of an April 2007 VA examination reveals no evidence of sleep impairment, hallucinations, inappropriate or obsessive behavior, panic attacks, or suicidal or homicidal thoughts. A GAF score of 60 was assigned. The examiner opined that the veteran did not meet the DSM-IV criteria for PTSD due to military service. His diagnosed PTSD was secondary to an attack while employed for a local newspaper. The Board notes that, while psychiatric treatment records dated in 2002 reveal an Axis I diagnosis of PTSD and a GAF score of 50, service connection is not in effect for PTSD. As such, symptoms attributable solely to this non-service- connected disability may not be considered in the evaluation of the service-connected adjustment disorder with mixed emotion, anxiety and depression. 38 C.F.R. § 4.14. In this case, the veteran's adjustment disorder with mixed emotion, anxiety and depression has been manifested, primarily, by episodes of depression, irritability, and anxiety. While these symptoms seemed to occur frequently, they are, nonetheless, reflective of overall moderate social and occupational impairment, although generally functioning satisfactorily with routine behavior and self-care. Such level of impairment warrants no more than the currently assigned 30 percent disability rating. While the veteran reported disturbances of both motivation and mood, and memory problems at times, these factors, alone, do not provide a sufficient basis for assignment of an initial 50 percent disability rating. Significantly, the veteran has not been found to have circumstantial or stereotyped speech, frequent panic attacks, difficulty in understanding complex commands, impaired memory, impaired judgment, or impaired abstract thinking-all symptoms which would warrant an initial 50 percent disability rating. The evidence does not reflect that the veteran's adjustment disorder with mixed emotion, anxiety and depression has caused severe impairment at any time in social and occupational functioning. Symptoms such as grossly inappropriate behavior, or persistent danger of hurting self or others are not demonstrated. While the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" (DSM-IV), the assigned GAF score in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, they must be considered in light of the actual symptoms of the veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a). The GAF score ranging from 51 to 60 assigned by recent examiners in September 2004 and April 2007 reflects moderate symptoms. Given the clinical findings of "intact memory," and "thoughts expressed in a logical and coherent manner," the Board finds that the overall evidence warrants no more than a 30 percent disability rating at any time. For the foregoing reasons, the Board finds that staged ratings, pursuant to Fenderson, are inapplicable; and that the preponderance of the evidence is against the grant of an evaluation in excess of 30 percent at any time since the effective date of service connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2007). B. TDIU Benefits Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In determining whether the veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In this case, the veteran has completed four years of college education. He reportedly worked as a salesman for a local newspaper from 1976 to 1997, and during his last year in 1997 he worked as a manager. Service connection is currently in effect for an adjustment disorder with mixed emotion, anxiety and depression- currently rated as 30 percent disabling, as shown above; and for lumbar strain with secondary back myositis, degenerative osteoarthritis of the spine, and left L4-L5 radiculopathy- currently rated as 30 percent disabling. The combined disability rating is 50 percent. See 38 C.F.R. § 4.25 (2007). This combined disability rating clearly does not meet the minimum percentage requirement for TDIU under 38 C.F.R. § 4.16(a). However, where the percentage requirements set forth above are not met, entitlement to the benefit on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra- schedular consideration all cases of veterans, who are unemployable due to service-connected disability, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). The Board notes that the September 2003 remand requested consideration of an increased disability rating for the veteran's service-connected back disability under the revised General Rating Formula for spinal disabilities. A review of the evidence of record does not reflect that an increased disability rating is warranted. Symptomatology associated with the veteran's service- connected back disability initially was consistent with a 40 percent evaluation for severe lumbosacral strain under former Diagnostic Code 5295, but that a 30 percent disability rating was assigned by the RO because a back condition had pre- existed service. The report of a November 2004 VA examination shows that the range of motion of the veteran's lumbar spine is to 50 degrees on flexion with pain, to 30 degrees on extension with pain, to 30 degrees on left and right lateral bending with pain, and to 30 degrees on rotation to the right and left with pain. The examiner found no postural abnormalities or fixed deformities of the thoracolumbar spine. Sensory examination showed decreased pinprick sensation at L5-S1 level in the right lower extremity. Motor examination showed no atrophy and showed a normal tone and strength. No intervertebral disc syndrome was found. An MRI scan of the veteran's lumbar spine in March 2006 revealed mild degenerative changes. Under the revised criteria, a 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Higher evaluations are assigned for ankylosis, and are not relevant in this appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). Notwithstanding the veteran's complaints of functional loss, the evidence shows that the veteran can flex his thoracolumbar spine well beyond 30 degrees. He, therefore, does not meet the criteria for an increased rating under the General Rating Formula. 38 C.F.R. § 4.7, 4.21. The veteran has not had any periods of doctor-prescribed bed rest, and no incapacitating episodes are shown. There is no evidence of neurological deficits sufficient to warrant a separate compensable disability rating under any diagnostic code. Ankylosis of the lumbar spine has not been shown. Accordingly, there is no basis for a disability evaluation in excess of the currently assigned 30 percent rating for the veteran's service-connected back disability under the revised criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2007). The Board notes that the September 2003 remand requested consideration of a TDIU on an extraschedular basis. In essence, the overall evidence does weigh in favor of a finding that the veteran is unemployable due solely to his service-connected back disability. A report of VA examination in November 2004 reflects the examiner's opinion that the veteran has limitations in his ranges of motion, ambulation, standing, and sitting tolerance due to easy exacerbation of pain in the lumbosacral area; and that the veteran is unsuitable to perform any kind of job position. Because of the veteran's service-connected back disability, he is unable to stand or sit for much longer than 30 minutes. This evidence shows that the veteran's service-connected back disability, alone, is of such severity as to prevent him from engaging in, for example, sedentary work. Nor is the veteran able to engage in manual labor. While a VA examiner in September 2002 opined that the veteran was not unemployable because he used to work in a managerial job that required frequent travel in the area, that examiner had not reviewed the veteran's medical records. Even assuming that the veteran might be able to sustain some employment while working at a desk for an hour or two, the evidence indicates that, if employed in such a position, it would only constitute "marginal employment." See Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). The Board recognizes that the veteran was awarded Social Security disability benefits primarily because of his lumbar strain, and this factor is pertinent to his claim for a TDIU. After consideration of all the evidence, the Board acknowledges that the veteran's service-connected back disability possibly causes total industrial impairment; it prevents him from performing sedentary work or manual labor. Accordingly, the Board finds that the veteran's service- connected back disability precludes him from working or, alternatively, meets the standard required for a determination of only "marginal employment." Again, where there is plausible evidence that a veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, the veteran's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Compensation and Pension Director. Based on the evidence above, including the testimony taken in May 2007, it is clear that such referral is warranted. At this point, the Board will not make a decision regarding the veteran's claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b), as we are not permitted to do so. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, the Board finds that this matter should have been submitted to the Compensation and Pension Director for extraschedular consideration under § 4.16(b). In this regard, the appeal is granted. Id. At this point, this claim will necessarily be REMANDED to the RO for further action consistent with this decision. ORDER An initial disability evaluation in excess of 30 percent for an adjustment disorder with mixed emotion, anxiety and depression is denied. Submission of a claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service, is warranted. REMAND Given the above, decision, this matter is remanded to the RO (or Appeals Management Center) for the following action: The RO should submit the claim for a total rating for compensation purposes based on individual unemployability under 38 C.F.R. § 4.16(b) to the Director, Compensation and Pension Service. The RO should follow the dictates of § 4.16(b) in making this submission. The veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2006). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs