Citation Nr: 0812627 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-11 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial rating in excess of 10 percent for major depressive disorder. ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from July 1988 to January 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Boise, Idaho. FINDING OF FACT Throughout the rating period on appeal, the veteran's major depressive disorder has been productive of symptoms resulting in an occasional decrease in work efficiency and intermittent inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to an initial evaluation of 30 percent, but no higher, for major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.130, Diagnostic Code (DC) 9434 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). 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). 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 (2007). 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 (2007). The Board has reviewed all of the evidence in the veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. At the outset, the Board notes that the veteran is appealing the initial disability rating assigned for his major depressive disorder. As such, the claim requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for major depressive disorder was initially granted in a November 2005 decision. At that time, a noncompensable evaluation was assigned effective April 22, 2005. Shortly following this, a February 2006 decision granted a 10 percent evaluation, also effective April 22, 2005. The veteran contends that his symptoms are of such severity as to warrant an increased rating throughout the rating period on appeal. Major depressive disorder is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, DC 9434. Under this general rating formula, a 10 percent evaluation is warranted where the evidence demonstrates 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. In order to be entitled to the next-higher 30 percent rating under DC 9434, the evidence must show occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational asks (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). The Board has reviewed the evidence of record during the period in question and finds that veteran's disability picture most nearly approximates the next-higher 30 percent evaluation under DC 9434. Indeed, the 10 percent rating currently in effect, is intended to reflect only mild or transient symptoms that only occasionally impair the veteran. Here, however, the medical evidence tends to indicate more than transient psychiatric symptomatology. For example, an October 2005 VA examination revealed chronic depression and anxiety. In a subsequent November 2006 VA outpatient record, the veteran stated that he often wanted to be isolated from others. He endorsed sleeping problems, concentration deficit and decreased interest in leisure activities at that time. He also reported that he constantly felt sluggish. The record also contains testimonial evidence from the veteran and a friend which report continuing psychiatric symptoms. The letters from the veteran and his friend report symptoms including chronic sleep loss, difficulty working and socializing, low energy level, low motivation, panic attacks, difficulty concentrating and loss of interest in many of leisure activities. The veteran and his acquaintances are competent to report on his observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the veteran's friend is a Registered Nurse (RN), which further bolsters her competence to comment on his disability picture. Furthermore, the Board finds no basis for questioning the credibility of the testimonial evidence of record. Indeed, the veteran's disability picture is described consistently in the various submissions. Moreover, the testimonial evidence is generally supported by the clinical records. For example, the veteran's complaints of sleep impairment are corroborated by a November 2006 VA outpatient record which notes his use of an over-the-counter sleep aid. As previously noted, another November 2006 record reflected complaints of symptoms including sleep impairment, concentration deficit, and anhedonia. Due to the persistency of the veteran's symptoms, as demonstrated by both the medical and testimonial evidence of record, the veteran's symptomatology cannot fairly be characterized as transient. Moreover, his symptoms generally appear to be more than mild in degree. Indeed, in a June 2007 statement, the veteran reported that he has "daily anxiety, depression, irritability, frequent anxiety attacks and nightly sleep impairment." He additionally noted that "I have increasing difficulty at work with irritability and have been increasingly less social. I continue to deplete my sick and vacation time at an alarming rate." Based on the foregoing, the currently-assigned 10 percent evaluation for the veteran's major depressive disorder is found to under-represent the consistency and severity of his disability picture throughout the rating period on appeal. Indeed, the evidence is determined to be more consistent with the next-higher 30 percent rating which addresses symptoms of depressed mood, anxiety, panic attacks and poor sleep, all of which are components of the veteran's disability picture throughout the rating period on appeal. For the foregoing reasons, a 30 percent evaluation is warranted throughout the rating period on appeal. The Board will now consider whether an evaluation in excess of that amount is appropriate here. In order to be entitled to the next-higher 50 percent rating for major depressive disorder, the evidence must show 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 effective work and social relationships. After reviewing the evidence of record, the Board finds that the evidence does not support an evaluation in excess of 30 percent for the veteran's service-connected major depressive disorder for any portion of the rating period on appeal, as will be discussed below. The overall evidence of record does not indicate that the veteran's service-connected major depressive disorder has caused speech or thought disorders. To the contrary, VA examination in October 2005 indicated that there was no impairment in thought process or communication. Based on the foregoing, then, the evidence does not show speech, communication or deficiencies in thought process such as to warrant the next-higher 50 percent evaluation under DC 9434. The evidence of record also fails to indicate panic attacks occurring more than once weekly. The competent evidence further fails to reveal significant memory impairment. In fact, while the October 2005 VA examination did not specifically address memory, it was noted that the veteran had no cognitive impairment. No other objective evidence of record shows memory loss and the veteran has not endorsed memory problems. The evidence of record does reflect disturbances in motivation and mood. Indeed, anxiety and depression were noted at the October 2005 VA examination. Additionally, the veteran reported a loss of interest in leisure activities. Despite the disturbances in motivation and mood detailed above, the overall evidence does not show that the veteran's major depressive disorder symptoms have caused occupational and social impairment with reduced reliability and productivity such as to warrant the next-higher 50 percent evaluation under the general rating formula for mental disorders. The Board acknowledges the November 2005 and April 2006 letters in which the veteran stated that he often had to miss work due to his depression and anxiety. However, VA examination in October 2005 shows essentially normal communication and cognitive abilities and a November 2006 VA treatment note shows that the veteran was appropriate and cooperative, with normal insight and judgment. In concluding that an initial disability rating in excess of 30 percent is not warranted here, the Board has also considered the veteran's Global Assessment of Functioning (GAF) scores assigned at his October 2005 VA examination. GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. 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). Here, the VA examination reveals a GAF score of 65. In this regard, the Board notes that scores ranging from 61-70 reflect 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. Based on the above, the veteran is entitled to a 30 percent evaluation throughout the rating period on appeal. However, an initial evaluation in excess of 30 percent is not warranted for any portion of the rating period on appeal. In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2007) is not warranted. Finally, 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. 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. As to VA's duty to assist, VA has associated with the claims folder the veteran's private and VA treatment records, and in October 2005, he was afforded a formal VA examination. 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). ORDER An initial evaluation of 30 percent for major depressive disorder is granted, subject to the rules governing payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs