Citation Nr: 0935438 Decision Date: 09/21/09 Archive Date: 10/02/09 DOCKET NO. 07-36 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for dysthymic disorder. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from November 1995 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied a disability rating in excess of 30 percent for dysthymic disorder. The Veteran appeared at a Travel Board Hearing before the undersigned in June 2009. A transcript is associated with the file. FINDINGS OF FACT The Veteran's service-connected dysthymic disorder is productive of impairment in occupational and social functioning with reduced reliability and productivity; the Veteran exhibits a flattened affect, has difficulty maintaining relationships, and has problems with concentration and memory; however, he is not psychotic, suicidal or homicidal; his dysthymic disorder is not manifested by deficiencies in most areas of occupational and social functioning. CONCLUSION OF LAW The criteria for a 50 percent evaluation for a dysthymic disorder, but no more than 50 percent, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code 9433 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In the instant case, the Board finds that VA fulfilled its duties to the veteran under the VCAA. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) and, inform the claimant about the information and evidence the claimant is expected to provide. While no longer required, in this case it was requested that the claimant provide any evidence in his possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). Additionally, the Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) mandate notification of all five elements of a service connection claim. Those five elements include: (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. This notice must also inform the Veteran on how VA determines that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted. Id. The Board is satisfied that the mandates of the VCAA have been met in this case. There is no issue as to providing an appropriate application form or completeness of the application. In August 2005, March 2007 and December 2007 VCAA letters to the Veteran, he was informed about the information and evidence not of record that is necessary to substantiate his increased rating claim; the information and evidence that VA will seek to provide; and the information and evidence the claimant is expected to provide. In addition, these letters provided the veteran notice regarding the evidence and information needed to establish a disability rating and effective dates, as outlined in Dingess-Hartman. The Board is cognizant of Vazquez-Flores v. Peake, 22 Vet App. 137 (2008), which pertains to notice of more specific and detailed criteria necessary for an increased rating. However, that decision was recently overruled in part, eliminating the requirement that such notice must include information about the diagnostic code under which a disability is rated, and notice about the impact of the disability on daily life. See Vazquez-Flores v. Shinseki, Nos. 2008-7150, 2008-7115 (Fed. Cir. Sept. 4, 2009). .It is also pertinent to note that the Veteran is represented by the New York State Division of Veterans' Affairs, and that organization is presumed to have knowledge of the applicable criteria for rating psychiatric disorders. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post- service pertinent medical records, including VA and private examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA psychiatric examinations that included mental status examinations. These evaluations are adequate for rating purposes; there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327. Legal Criteria-Increased Ratings/General Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, 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. See 38 C.F.R. § 4.7. For claims for an increase that do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the disability evaluation, VA has a duty to consider all possible regulations which may be potentially applicable based upon the assertions and issues raised in the record. After such a consideration, VA must explain to the Veteran the reasons and bases utilized in the government's decision. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Legal Criteria-Psychiatric Disorders Diagnostic Code 9433 addresses dysthymic disorder. Under that code, evaluations may be assigned ranging between 0 and 100 percent. The Veteran is currently assigned a 30 percent disability rating. This evaluation is in order 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 9433. A 50 percent rating is warranted 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 assigned when the disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, 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 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9433. A maximum 100 percent rating is assigned for dysthymic disorder that causes 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 global assessment of functioning (GAF) is a scale reflecting the psychological, social and occupational functioning on a hypothetical continuum of mental health- illness. Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994). See Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF from 61 to 70 indicates some 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. A GAF from 51 to 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 co-workers). A GAF of 41 to 50 is defined as "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM- IV, at 32; Richard v. Brown, 9 Vet. App. 266, 267 (1996). Analysis The Veteran is currently service-connected for dysthymic disorder, and is in receipt of a 30 percent evaluation. He contends, in essence, that his psychiatric disability is more disabling than currently evaluated. Since filing the claim for an increase, there have been several private psychiatric examination reports, as well as one VA examination report, which address the severity of service-connected dysthymia. The earliest of these, a private report dated in June 2005, determined that the Veteran appeared somber, soft-spoken, and subdued. There was a noted impediment to his speech, and he displayed a low level of energy and motivation. There was no evidence of delusional behavior or of a thought disorder, and no hallucinations were present. The affect was depressed and mood was low. The Veteran was not suicidal or homicidal. Regarding concentration, there was no suggestion of any disorientation or confusion; however, his attention span was noted only as fair, and he became tense when asked to perform spelling or calculation. A GAF of 55 was assessed, with a score of 65 being the highest in the prior year. The Veteran has had several clinical visits for his depressed mood, and a May 2005 consultation revealed that he would like to be placed on antidepressant medication. He reported smoking heavily, and wanted the antidepressants to help control his mood in a less health-adverse way than through tobacco use. Clinical psychology notes throughout 2006 indicated that the Veteran has had several jobs, and has limited social contacts. Flattened and depressed affects were noted during this time, and GAF scores of 55 and 59 were reported. The Veteran reported being in "on/off" relationships, and that he was living with his niece and her children, due to his brother being stationed in Iraq. He mentioned that he wanted to maintain this family relationship. The next private examination occurred in April 2007. In the associated report, it was evident that the Veteran was somewhat untidy, unkempt, and unshaved. He spoke slowly and was occasionally slurring his speech. He did not display the level of timidity, bashfulness, or shyness as was apparent in the earlier 2005 examination; however, he was still sensitive to other people's remarks. The Veteran was guarded, and was hypervigilant and professed to avoid other people if possible. There was no flight of ideas, and he was not delusional or prone to hallucination. The affect was mildly depressed, with mood "a little low." The overall fund of knowledge was marginally adequate, and he had a limited vocabulary with borderline intellectual capacity. The Veteran reported a limited social contact. At the time of the examination he was employed, and reported his daily routine as working then coming home, without mingling or contacting others. There was some improvement noted in impulse control, and he was not as tearful as he was in the previous examination. GAF was noted as 50, with a high score of 55 within the year. The Veteran was last examined in June 2008, after alleging that his service-connected disability had increased in severity following his most recent examination. He did, prior to this examination, report being unable to secure work and a separate claim for a total disability rating based upon individual unemployability was denied by the RO in an October 16, 2008 decision. The Veteran has not appealed this decision, although the 1 year period of time to file such an appeal has not expired. See 38 C.F.R. §§ 20.201, 20.302(a) (2008). In the June 2008 examination, it was determined that the Veteran was currently unemployed; but, that he used to drive trucks in the past. The Veteran described difficulties with co-workers and in keeping personal relationships for longer than 10 months. He also noted feeling more depressed recently due to the deaths of his brother and father. The examiner did not review service or other private records, although he did indicate reviewing the VA clinical history. Essentially, the Veteran was found to be depressed, although, he was not as "purely' depressed as had been noted in the past. In addition to his dysthymia, anxiety and a more generalized emotional malaise were noted. The Veteran reported estrangement from the remaining members of his family. The Veteran was not found to have total occupational and social impairment due to his mental disorder; however, there was a noted impairment in judgment and reasoning. The Veteran reported being overwhelmed by feelings of helplessness and fear of failure. A GAF score of 53 was assigned. Based on the above evidence, the Board notes that the Veteran does have significant impairment in social and occupational functioning. In his hearing before the undersigned, he reported intermittent panic attacks, and it is clear by clinical and examination reports that there is a significant history of flattened affect and depressed mood. The Veteran's intellectual capacity is limited; however, he reports having problems with memory, and he has been objectively found to display concentration difficulties. He has had numerous jobs, and has few friends, with romantic relationships lasting under a year. The Veteran has not, however, been delusional or had psychotic episodes. He has not felt suicidal or homicidal, and save for usage of tobacco, does not have a significant history of self- destructive behavior. There is not a near constant depression or state of panic, and his speech, while slurred sometimes, is not illogical. He actively seeks out relationships with members of the opposite sex (although he has trouble maintaining the relationships), and has lived with a significant other in the recent past. Clinically, he has been found to not have total social and occupational impairment. In view of the foregoing, the Board concludes that a 50 percent evaluation for the Veteran's dysthymic disorder is warranted. The sporadic work history, with a multitude of different short-term jobs, suggests a reduced reliability in occupational functioning. While the Veteran has had relationships, they are short-lived, and he does not have friends or other form of support group. This suggests that there is an effort made to engage in social relationships; however, that social functioning is itself marred by reduction in reliability and productivity. Despite this, the Board cannot conclude that there are deficiencies in most areas of social and occupational functioning. The Veteran has been able to get a commercial truck driver's license, and has had relationships with others. He does not engage in obsessional rituals, and while he is slow in speech, the Veteran is not illogical or unaware of his surroundings. There was one noted report of an unkempt appearance; however, it is not indicated that the Veteran perpetually neglects his appearance. The Veteran is not a danger to himself and is not psychotic. He does not have most of the symptoms (illustrative but not controlling) for a 70 percent rating and his GAF scale scores are consistent with a 50 percent evaluation. Essentially, the preponderance of the evidence is against a finding of deficiencies in most areas of occupational and social functioning due to a dysthymic disorder. The preponderance of the evidence is also against a finding of total social or occupational inadaptability due to a dysthymic disorder. Regarding entitlement to a disability rating in excess of 50 percent, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the appellant when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable to this aspect of the claim because the preponderance of the evidence is against an even higher rating. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Thus, an increased rating to 50 percent for the Veteran's dysthymic disorder, but no more than 50 percent, is warranted. ORDER Entitlement to a 50 percent rating for a dysthymic disorder, but no more than 50 percent, is granted, subject to the statutes and regulations applicable to the payment of VA benefits. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs