Citation Nr: 0814625 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-26 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 10 percent for adjustment disorder with depressed mood. REPRESENTATION Appellant represented by: Richard Mahlin, Attorney ATTORNEY FOR THE BOARD B.W. Hennings, Associate Counsel INTRODUCTION The veteran served on active duty from April 1941 to November 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. FINDING OF FACT The veteran's adjustment disorder with depressed mood shows occupational and social impairment due to mild or transient symptoms. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9440 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.10. Where, as here, entitlement to service-connection has been established, but a higher initial disability rating is at issue, the extent of impairment throughout the entire period, beginning with the filing of the claim, must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (when a disability rating is initially assigned, separate ratings should be considered for separate periods of time, known as staged ratings). Since the veteran did not manifest symptoms to warrant a rating in excess of ten percent at any time since the grant of service connection, staged ratings are inappropriate here. For a 10 percent rating under 38 C.F.R. § 4.130's General Formula for Rating Mental Disorders, the evidence must show occupation 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. For a 30 percent rating under 38 C.F.R.§ 4.130's General Formula for Rating Mental Disorders, the evidence must show 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). History and analysis The veteran submitted his claim for service connection for depression, secondary to his service-connected bilateral hearing loss and tinnitus in January 2006. The March 2006 Rating Decision on appeal granted the veteran service connection for adjustment disorder, with depressed mood and assigned an initial rating of 10 percent, effective from January 17, 2006. The veteran has appealed the 10 percent rating. The veteran submitted a November 2005 private psychological examination report. The Board notes that this report is outside of the rating period to be considered during this appeal, as the veteran is service-connected for adjustment disorder with depressed mood from January 17, 2006. The examiner noted the veteran to be dressed appropriately, very well groomed and clean. The veteran stated he slept very well, but experienced an occasional nightmare. In addition, he attends church as he is able and watches a good deal of television. He expressed frustration over his hearing loss. The examiner noted that the veteran has not really diminished appreciably in his personal routines and daily habits at least where his self help hygiene skills are concerned. The examiner went on to say that the veteran had deteriorated in his social response and his emotional difficulty, not only including the stress over his hearing loss but were characterized by a good deal of severe anxiety and depression, which according to the veteran, are caused by fear of his wife passing away. The examiner found the veteran to be non-delusional, non-paranoid and non-psychotic, with logical associations. In addition, the examiner stated that the veteran was oriented in virtually all four spheres and he was alert, coherent and completely aware of his environment. However, the examiner also found that the veteran's mental content was depressed and his insight was fair. The examiner also stated that the veteran's cognition was so contaminated it was would be nearly impossible for the veteran to attempt any gainful employment. The examiner felt that the veteran could not cope with the rigors of a competitive setting. The examiner diagnosed adjustment order with depression. The veteran is retired as shown by his February 2006 VA examination report. That report also indicates that he has been married since 1957 and has several children and grandchildren, whom he enjoys very much and relates to well. The veteran stated he had been a social person during his life, liked by many people and does not feel he that he is one to have enemies or that others would view him as grouchy or irritable. He and his wife routinely go down to the mail area where they live at noon where other people congregate daily for social activity. The veteran indicated he is functioning very well with regard to taking care of his and his wife's activities of daily living and is also tending to the household duties and chores. The examiner noted that the grooming and hygiene were very good for a 93 year old. The veteran did not report any panic attacks, sleep impairment or any anxiety. The veteran reported he feels depressed at times because he can not hear as he used to. The veteran stated that his sleep, appetite and energy level were all very good. He denied feelings of hopelessness and helplessness. The veteran's mood does vary with some transient depressive mood. This is transient in severity and the symptoms are less days than not in a given week. The VA examiner diagnosed the veteran with adjustment disorder with depressed mood secondary to service-connected hearing loss. While the November 2005 private examiner indicated that the veteran was unemployable, he did not indicate such was due to the veteran's adjustment disorder with depressed mood, which was related to the veteran's hearing loss. The examiner noted that the veteran had severe anxiety and depression over the thought of his wife passing away. Furthermore, the private examiner noted that the veteran was well-groomed and clean, that the veteran slept very well and that the veteran had not diminished appreciably in his person routines and daily habits. The Board finds that the actual symptoms described by the private examiner as to the veteran's ability to function psychologically due to his service-connected adjustment disorder is more similar to the requirements of a 10 percent rating than 30 percent. The February 2006 VA examination report, within the rating period, does not show show 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). The veteran did not report panic attacks, suffer from sleep impairment or report any anxiety. In addition there were no problems with the veteran handling the activities of daily living and the veteran was well groomed and clean. The veteran displayed a normal affect, a logical thought process and a normal memory. Instead, mild or transient symptoms only during periods of significant stress - warranting no more than a 10 percent disability under the general rating formula - are more nearly approximated. In light of the above, a higher initial rating than 10 percent is not warranted. 38 C.F.R. § 4.7. In light of the above, a higher initial rating is not warranted. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and 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 his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial- disability-rating and effective-date elements of a service- connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). As for the duty to notify, in a January 2006 letter sent before the issuance of the rating decision granting service connection, the veteran was advised of his and VA's respective claim development responsibilities and was asked to identify sources of evidence. The Board notes that VAOPGCPREC 8-2003 held that, if, in response to notice of its decision on a claim for which VA has already given the section 5103(a) notice, VA receives a notice of disagreement that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. Furthermore, the veteran was sent a letter in March 2006 which provided him information regarding initial-disability- ratings and effective-date elements of a claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). This letter informed him of information and evidence necessary to substantiate an increased rating claim; informed him of the information that VA will seek to provide; informed him of the information that the veteran is expected to provide; and asked the veteran to submit any evidence in his possession pertinent to his claim. With respect to VA's duty to assist the veteran, the RO has obtained the veteran's service medical records and VA medical records. The veteran has also been provided a VA medical examination. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. The veteran has submitted medical records favorable to his claim. Neither the veteran nor his representative has indicated that there are any additional pertinent records to support the veteran's claim. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER An initial rating in excess of 10 percent for adjustment disorder with depressed mood is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs