Citation Nr: 0810889 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 98-01 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to April 12, 2002, for dysthymic disorder. 2. Entitlement to a disability rating in excess of 30 percent from April 12, 2002, for dysthymic disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. Rose, Counsel INTRODUCTION The veteran had active military service from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, regional office (RO). The veteran filed a claim for increased disability rating in excess of 10 percent for dysthymic disorder on November 13, 1996. In April 1997, the RO denied the claim. The veteran perfected the appeal. In August 2002, the RO increased the rating to 30 percent disabling, effective April 12, 2002. The issues on appeal reflect the fact that two separate ratings were given during the claims period. The veteran testified before a Decision Review Officer at the RO in July 1998. The Board remanded this matter in August 2003. Documents in Spanish were translated into English and incorporated into the record. A VA psychiatric progress note of September 2006 indicates the veteran is unemployable. This issue should be addressed by the Ro and is referred for appropriate action. The issue of entitlement to disability rating in excess of 30 percent for dysthymic disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Resolving all reasonable doubt in the veteran's favor, for the period November 13, 1996 to April 12, 2002, his dysthymic disorder was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as depressed mood and affect, and anxiety. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, have been met for dysthymic disorder for the period November 13, 1996 to April 12, 2002. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9433 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist In correspondence dated March 2002, May 2004, and May 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the service connection claim and increased rating claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), for an increased-compensation claim, section 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 of 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case, the claimant was provided pertinent information in the correspondence cited above, in the March 2007 supplemental statement of the case. Cumulatively, the veteran was informed of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment. The veteran was also provided the applicable diagnostic codes under which he is rated. Each diagnostic code contains criteria necessary for entitlement to a higher disability ratings that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result); the claimant was informed that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and examples of pertinent medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. Through his submissions, the veteran has demonstrated actual knowledge of evidence necessary to substantiate his increased rating claim. For instance, he submitted additional evidence in February 1998 indicating he was sending it to support his claim for an increased rating. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured, including records from the Social Security Administration. The veteran was examined on a number of occasions to determine the severity of his service- connected disorder. The duties to notify and assist have been met. The Board also points out that, as to the partial grant of increased benefits for dysthymic disorder, the RO will be responsible for addressing any notice defect with respect to the effective date element of the awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, it is not prejudicial to the veteran for the Board to proceed to finally decide the issues discussed in this decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2007) (harmless error). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence on what the evidence shows or fails to show on the veteran's claims. Dela Cruz v. Principi, 15 Vet. App. 143, 148-149 (2001) (discussion of all evidence by Board not required when Board supports decision with thorough reasons and bases regarding relevant evidence). II. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service- connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2007); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2007), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board notes that effective November 7, 1996, VA revised the criteria for diagnosing and rating psychiatric disabilities. 61 Fed. Reg. 52695 (1996). As the veteran filed his claim after the rating criteria was revised, only the new rating criteria is considered. The veteran is currently rated as dysthymic disorder under Diagnostic Code 9433. 38 C.F.R. § 4.130 (2002). That code provides that dysthymic disorder should be rated under the general rating formula for mental disorders. Under that criteria, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or if the veteran's symptoms are controlled by continuous medication. A 30 percent disability rating is assigned for a mental disorder (including dysthymic disorder) when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for PTSD which is productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) scores are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 1995); 60 Fed. Reg. 43186 (1995) A GAF score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A GAF of 41-50 is defined as serious symptoms (e.g., suicidal ideations, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51-60 is defined as 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 co- workers). A GAF of 61-70 is defined as some mild symptoms OR some difficulty in social, occupational, or school functioning. A GAF of 71-80 is defined as, if symptoms are present, they are transient and expectable reactions to psychosocial stressors. A GAF of 81-90 would indicate absent or minimal symptoms and a GAF of 91 to 100 would indicate superior functioning in a wide range of activities; no symptoms. The evidence includes private medical records in 1996 and 1997. Here, clinical findings indicated poor memory, depressed affect and mood, startle response, and hallucinations. VA examination in January 1997 indicated the veteran was alert and oriented, mood was depressed and somewhat anxious. Affect was blunted. Attention was good. Concentration and memory were fair. Speech was clear and coherent. He was not hallucinating. He was not suicidal or homicidal . Insight and judgment were fair. He exhibited good impulse control. A GAF score of 70 was assigned. Private medical records in June 1997 note that the veteran is forgetful and has hallucinations and a small appetite. A January 1998 indicates symptoms of severe hallucinations and the veteran stated that he is afraid of hallucinations. A September 1998 note indicated poor concentration and attention. VA examination report in December 1999 indicated the veteran's mood was anxious and slightly depressed. His affect was constricted. His attention and concentration was good. His memory was good. His speech was clear and coherent. Hallucination symptoms were not shown. He was neither suicidal nor homicidal. His insight and judgment was fair. He exhibited good impulse control. The diagnosis was dysthymia. A GAF score of 75 was assigned. Private psychiatric report in March 2000 indicated difficulty with attention and concentration. A November 2000 record noted a normal appearance. Attitude was cooperative and frank. Speech was slow. Mood appeared quite depressed. Affect was appropriate. Thought process was goal-oriented and productive. There was no evidence of obsessions, compulsions, phobias, suicidal or homicidal ideation, or self-destructive impulses. There was no evidence of delusions. There was no evidence of ideas of unreality. The veteran exhibited difficulty with attention. There were no illusions, feelings of depersonalization or derealization. He stated that he hears voices calling him, and sometimes laughed at him. He was otherwise alert and oriented. Memory and insight was intact. Judgment indicated poor response in social, family and interpersonal relations. The diagnosis was major depression, recurrent, sever, with psychiatric features. A GAF score of 55-60 was assigned. VA clinical findings in 2001 and 2002 note depressed mood and affect. No other clinical findings were shown. VA examination report in April 2002 revealed the veteran was alert, oriented times three. His mood was depressed. His affect was constricted. His attention was good. His concentration was good. His memory was fair. His speech was clear and coherent. There were no findings of hallucinations or suicidal or homicidal ideations. His insight and judgment was fair. The veteran exhibited good impulse control. Based on a careful review of the record, the Board finds that the evidence supports the veteran's entitlement to a 30 percent rating during the entire claims period prior to April 12, 2002. In reaching this determination, the Board notes that the private treatment records prior to April 12, 2002, and VA examinations in January 1997 and March 2000, show that the veteran's dysthymic disorder exhibited symptoms of depressed mood, depressed or blunted affect and anxiety. While not shown on VA examinations or VA clinical records, private medical evidence shows symptoms of difficulty with attention and concentration, startle response, and hallucination. GAF scores ranged from 55 to 75 during the claims period prior to April 12, 2002, which according to DSM-IV reflects mild to moderate social and industrial impairment. By viewing this evidence in the light most favorable to the veteran, the Board finds that his level of disability more closely approximates the criteria for a 30 percent rating under Diagnostic Code 9433. 38 C.F.R. § 3.102. The Board further concludes that the preponderance of the evidence is against entitlement to a 50 percent rating because there is no evidence that he had a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of long-term memory; impaired judgment; or impaired abstract thinking. Poor memory was noted in private medical records dated in 1996 and 1997; however, VA examination reports in January 1997 and December 1999 noted fair memory and private medical report in November 2000 indicated memory and insight were intact. The record also reflects the veteran reporting auditory hallucinations, which is a symptom under the 100 percent rating criteria. However, such symptoms were note shown on either VA examination report, or the private psychiatric reports in March 2000 and November 2000. The November 2000 private medical examiner specifically stated that there were no illusions, feelings of depersonalization or derealization on evaluation. In short, a 30 percent disability rating, but no higher, is warranted for dysthymic disorder, from November 13, 1996 to April 12, 2002. ORDER Subject to the law and regulations governing payment of monetary benefits, a 30 percent rating for dysthymic disorder, effective November 13, 1996, is granted. REMAND The Board finds that the evidence is inconclusive as to the veteran's current level of symptomatology, and whether the veteran is unemployable due to his service-connected dysthymic disorder. VA psychiatric progress note in September 2006 indicated a GAF score of 46 was assigned and the examiner indicated that the veteran's condition was showing deterioration. The examiner further stated that the veteran was not able to work or get involved in gainful activities. Prior evaluations summarized in the decision did not give such an indication. On remand, the RO must schedule a VA examination to determine the current nature of the veteran's dysthymic disorder, as well as his employability. Accordingly, the case is REMANDED for the following action: 1. The veteran should be scheduled for a VA psychiatric examination to determine the current severity of his service- connected dysthymic disorder. The claims folder should be made available to the examiner in connection with the examination. Any testing deemed necessary should be performed. The examiner is to prepare an examination report which corresponds to the applicable rating criteria. 38 C.F.R. § 4.130. The examiner should also opine as to the veteran's relative difficulty in obtaining or retaining employment due to his dysthymic disorder. A complete rationale for any opinion expressed should be included in the examination report. 2. Thereafter, the AMC should readjudicate the veteran's claim for a disability rating in excess of 30 percent for his dysthymic disorder, to include whether an extraschedular evaluation is appropriate. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. The veteran and his representative have 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 Supp. 2007). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs