Citation Nr: 1134867 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 06-03 875A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating higher than 50 percent, prior to September 23, 2003, for chronic dysthymic disorder with anxiety. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant; Appellant's spouse ATTORNEY FOR THE BOARD T. Sherrard, Associate Counsel INTRODUCTION The Veteran had active service from August 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). Although the issue as certified to the Board was framed in terms of entitlement to an earlier effective date, the Board has recharacterized the issue for the following reasons. The Veteran claimed entitlement to service connection for a psychiatric disability in May 1996 and the RO denied the claim in March 1999. The Veteran appealed and the Board granted the claim in September 1992. The RO implemented this grant in an April 2003 decision, and assigned a 50 percent rating, effective the May 28, 1996 date of claim (the Board notes that the date stamp on the the claim is actually June 28, 1996). The Veteran filed an October 2003 notice of disagreement (NOD). While he did not specifically indicate the basis of this disagreement, the RO interpreted it as an NOD with the assigned 50 percent disability rating. In an August 2004 rating decision and statement of the case (SOC), the RO granted a higher, 100 percent rating, but only from September 23, 2003, the date that it found that medical evidence supported the higher 100 percent rating. Prior to this date, the RO confirmed the 50 percent rating. Although the Veteran expressed satisfaction with the 100 percent rating in an August 2004 statement in support of claim (VA Form 21-4138), in an April 2005 statement in support, he wrote that he believed the effective date should have been the May 1996 date of claim. While the RO interpreted this latter statement as an NOD with the effective date assigned in the August 2004 rating decision, the Board finds that the Veteran was in fact expressing his continued disagreement with the initial rating assigned in connection with the grant of service connection, regarding which the RO's August 2004 decision and SOC had created a staged rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board has recharacterized the issue accordingly on the title page. The Veteran provided testimony at an April 2008 hearing before a Decision Review Officer, and at a February 2011 Travel Board hearing at the RO before the undersigned. A transcript of each hearing is associated with the claims folder. FINDING OF FACT The overall symptomatology of the Veteran's chronic dysthymic disorder with anxiety has most nearly approximated total occupational and social impairment throughout the appeal period. CONCLUSION OF LAW The criteria for a 100 percent rating for chronic dysthymic disorder with anxiety have been met prior to September 23, 2003. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). However, as the Board is granting the claim for a higher initial rating for chronic dysthymic disorder with anxiety by finding that a 100 percent rating is warranted throughout the appeal period, the Veteran is being awarded the maximum possible benefit, the claim has been substantiated, and there are no further VCAA duties. See Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson, 12 Vet. App. at 119. As discussed above, the RO in this case assigned a staged rating when it granted a 100 percent rating from September 23, 2003, and confirmed a 50 percent rating prior to this date. However, as shown below, in this case the evidence warrants a uniform 100 percent rating. In this case, the rating for chronic dysthymic disorder with anxiety was assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. All psychiatric disorders, however, are rated under the general formula for rating mental disorders. Under the general rating formula, a 50 percent rating is assigned where 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 rating of 70 percent is assigned where there is 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); and inability to establish and maintain effective relationships. Finally, a 100 percent rating is assigned where 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; and memory loss for names of close relatives, own occupation, or own name. Significantly, the Court has held that while the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the 100 percent rating, they are not meant to be exhaustive, and the Board does need to find all or even some of the symptoms to award a 100 percent rating. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). The Veteran underwent a psychiatric evaluation with Dr. C.E.M. in January 1996. He reported that his social life had decreased over the past 2 or 3 years, although he did attend church once a week. He spent much of his day sitting, sleeping, watching television, and listening to the radio. His mood was depressed, and he had anxiety and sleep disturbance. His memory was poor. He was neatly dressed and groomed. His speech was clear and conversation was spontaneous. His affect was appropriate, and mood was depressed. Thoughts were organized. He mentioned some episodes of derealization. There was no evidence of grandiosity. He was oriented to date, place, and name. He could recall his birth date, but not his Social Security Number. He could do serial sevens from one to one-hundred. He could give 3 similarities of an apple and orange and 2 differences. The doctor assessed depressive disorder not otherwise specified (NOS) and stated that the Veteran could manage his own money. In May 1996, the Veteran sought treatment at the Tuskegee VAMC with a chief complaint of depression. He had experienced insomnia for the past 6 months, and had poor concentration and decreased memory. He denied suicidal ideation. He was oriented to person, place, and time. His speech was of good tone and quality. He had a depressed mood. He reported some auditory hallucinations. His judgment was fair, but concentration and memory were poor. The doctor assessed major depression and prescribed Prozac and Restoril. In July 1996, the Veteran reported feeling much better, but still experienced nervousness. He had no delusions. The doctor increased his dosage of Vestoril. In May 1997, the SSA determined that the Veteran was disabled, effective from May 17, 1995, and awarded him Social Security Disability (SSD) benefits. The primary diagnosis upon which the award was based was disorders of the back, and the secondary diagnoses were affective disorder, chronic pain disorder, migraine and tension headaches, and an ulcer. The Veteran was afforded a VA examination in July 1998. He reported that he had been followed at the Central Alabama VAMC on an outpatient basis and had been on medication for his psychiatric disorder since 1992 or 1993. Specifically, he took medication for insomnia and depression. The examiner reviewed the claims file, noting that medical records indicated the Veteran had been unemployed since 1993 due to back pain. The first record from the VAMC mental health clinic was dated in March 1996, when the Veteran complained of nervousness and depression. He was prescribed Vistaril and Prozac. Currently, the Veteran lived with his wife of 25 years. He was a member of the City Council, and that constituted his social life. He had realistic nightmares of being on a ship 3 or 4 nights per week. He reported insomnia, depression, anxiety, and reliving traumatic experiences as well. He said he had no friends and disliked crowds. The examiner observed no impairment in thought processes or communication. There were no delusions or hallucinations. The Veteran reported that he was suicidal at times, but his wife could talk him out of feeling that way. He had no homicidal ideation, plan, or intent. He was oriented to person, place, and time. His memory was intact. He had no obsessive or ritualistic behavior. The rate and flow of his speech was normal, and it was relevant and coherent. He had no panic attacks. His depressed mood and anxiety were well-moderated by medication. He had no impairment of impulse control. The Minnesota Multiphasic Personality Inventory indicated serious deficits in ego functions. Individuals with profiles such as his often present themselves as physically ill, but their chronic complaints were not usually substantiated upon examination. Pain was often a prominent feature. Fatigability and irritability were characteristic. Prominent features were depression, generalized anxiety, and somatic concern. Moderate to severe levels of anxiety and tension would make simple routine life tasks difficult for the Veteran. Scores on the Self-Report measures, the Mississippi Scale, and the Penn Inventory for PTSD corresponded to a diagnosis of PTSD. The Veteran's scores indicated that he experienced a moderate number of symptoms. Scores on the Beck Depression Inventory indicated he suffered a moderate level of depression. The examiner assessed chronic PTSD with delayed onset, and assigned a Global Assessment of Functioning (GAF) score of 55, reflecting moderate psychiatric symptoms. GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). At a July 2000 hearing before the Board conducted in connection with his claim for entitlement to service connection that was subsequently granted, the Veteran testified that he was taking Zoloft and Prozac for his depression, and received treatment for his depression from a private physician. He continued to have nightmares, as reported by his wife. He did not enjoy being around other people, although he liked to spend time with his grandchildren if they were not all present at once. The Veteran was afforded another VA examination in March 2001. He stated had had been admitted to the psychiatric unit at the Tuskegee VAMC for 2 days in 1998. At the time, he was feeling depressed and had been having nightmares about the death of his friend who died in Vietnam. Currently, he was not receiving any outpatient psychiatric counseling. When he got upset, he took Zoloft, but not on a regular basis. In addition, when he had trouble sleeping, he took Ambient. He denied having difficulty controlling his anger, and had no history of violence. After service, he worked at the foundry for 21 years. When he was working, he was a good worker and was able to get along with his coworkers. He retired in 1993 due to problems with his back and knees, and because he felt depressed at times. Currently, he was sleeping 5 or 6 hours per night with medication. He had nightmares about his friend who committed suicide during military service 3 or 4 times per week. He denied having any ideas about hurting himself or others. The Veteran was dressed appropriately and was cooperative. His mood appeared to be mildly anxious and depressed. There was no severe psychomotor retardation. His affect was appropriate. His eye contact was good. He denied suicidal or homicidal ideations. His memory was fair, although he had some difficulty concentrating on serial sevens, which could be due to his underlying anxiety and depression. The examiner assessed chronic dysthymic disorder with some PTSD features, and assigned a GAF score of 60. The examiner stated that the Veteran was likely suffering from chronic depression with anxiety, which could be related to the death of his friend in Vietnam. He had some minor features of PTSD in the form of poor sleep and recurrent thoughts. However, these symptoms were not severe in nature. Moreover, at the present time, the Veteran was not receiving any treatment. There was no history of difficulty working when he was at the foundry for many years. He also had impairment of vocation, mostly secondary to his physical problems such as migraine headaches and left knee pain. The Veteran underwent a psychological evaluation in February 2002 as part of an assessment of eligibility for continued SSD benefits. The evaluation was conducted by Dr. P.B.M. at the Auburn-Opelika Psychology Clinic. When she asked the Veteran why he was unable to work, he stated that he had back and shoulder problems, severe migraines, and varicose veins that caused pain in his groin. He had been married for 29 years. Since military service, he had received outpatient psychiatric care at the Tuskegee VAMC. He helped his wife, who managed an apartment complex, to collect rent. He also helped with household chores, such as cooking, making beds, and washing dishes. He enjoyed playing with his two new puppies and watching television. He denied having problems socializing, but described himself as a loner. He was able to manage his own hygiene, with the exception that he needed help putting his socks and shoes on. On his worst days, he might need help getting in and out of the bathtub due to physical limitations. He was neatly dressed and groomed. His presentation was affable and cooperative. His speech was normal, he was fully oriented, and his thought processes were logical. He reported passive suicidal ideation at times. He also had periods where he felt high, as if he were on drugs, when he was highly energized and/or agitated 3 or 4 times per week. He sometimes went 2 or 3 days without sleeping, and then slept for 24 hours. His affect range was normal, as was his mood. His long-term and short-term memory and concentration were intact. The doctor assessed bipolar disorder. The next chronological medical document is dated September 30, 2003, when the Veteran was assigned a 100 percent disability evaluation. The Veteran also submitted a number of letters from friends and family members. In a January 2011 letter, his mother stated that the last year he was able to work was in 1993, and he was awarded SSD in 1996. Thus, he should be awarded an effective date at least as early as 1996. In a December 2009 letter from a friend, A.W., the friend reports that the Veteran would talk to him about wanting to "blow his brains out" after separation from service. In a January 2011 letter, another friend of the Veteran's, D.E., stated that he did not understand why the Veteran did not receive an increase in disability benefits until 2003, since he personally observed severe psychiatric symptoms in the Veteran since after they separated from service in 1975. The Veteran and his wife testified during the hearing that his psychiatric symptoms had been severe throughout the appeal period. The above evidence reflects that the Veteran did not have many of the symptoms for a 70 or 100 percent rating under the general rating formula prior to September 23, 2003. However, under Mauerhan, the presence of the specific symptoms listed in the criteria for these ratings is not required to warrant such ratings. The symptoms listed in the criteria are examples, and the Board must determine the level of impairment caused by the existing symptoms. For the following reasons, the Board finds that the level of impairment warrants a 100 percent rating throughout the appeal period. First, one of the bases for the SSA's finding of unemployability, equivalent to total occupational impairment, was the Veteran's psychiatric disability, and this finding of unemployability was made as of May 1995, even prior to the filing of the service connection claim. Second, the credible Board hearing testimony of the Veteran and his wife, as well as the lay statements, indicated that the Veteran's psychiatric symptoms had been severe throughout the appeal period. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay testimony competent as to observations). Third, the medical evidence prior to and from September 23, 2003 does not show a significant enough variation to warrant a staged rating. Rather, the symptoms have been sufficiently severe since the Veteran filed his May 1996 claim, and throughout the period during which the Veteran has continuously pursued his appeal of the RO's March 1999 denial of his service connection claim, to cause total occupational and social impairment. Consequently, the Board finds that a 100 percent rating for chronic dysthymic disorder with anxiety is warranted prior to September 23, 2003. ORDER An initial rating of 100 percent prior to September 23, 2003, for chronic dysthymic disorder with anxiety, is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs