Citation Nr: 1107269 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 08-34 076A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial rating in excess of 50 percent for depression. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD H. E. Costas, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to January 1986 and from April 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2003, the matter was remanded for the issuance of a statement of the case. As no apparent action had been taken on this matter, the issue was again remanded for the issuance of a statement of the case in May 2006. FINDING OF FACT 1. Prior to July 9, 2008, the Veteran's depression has not been shown to be manifested by occupational and social impairment with deficiencies in most areas or inability to establish and maintain effective social relationships; his symptoms primarily involve depressed mood, anxiety, sleep impairment, irritability, avoidance, isolation and occasional crying spells. 2. From July 9, 2008, the evidence reflects frequent suicidal ideation, with some obsessional rituals. There is no showing of 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. CONCLUSIONS OF LAW 1. Prior to July 9, 2008, the criteria for an initial evaluation in excess of 50 percent for service-connected depression have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). 2. From July 9, 2008, the criteria for an initial evaluation of 70 percent for service-connected depression have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's claim for an increased disability rating here arises from an appeal of 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. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, Social Security Administration records, as well as post-service reports of VA treatment and VA examination reports dated in January 2003, July 2008 and September 2010. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Moreover, an appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Throughout the entirety of the period on appeal, the Veteran's service-connected depression has been evaluated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2010). Depression is evaluated under the General Rating Formula for Mental Disorders. Under this formula, a rating of 50 percent is assigned for 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 per 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. A rating of 70 percent is assigned for 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 work like setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for 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. 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 evidence of record includes Global Assessment of Functioning (GAF) scores. GAF scores are 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 the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32). GAF scores ranging between from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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). See 38 C.F.R. § 4.130 (incorporating by reference the VA's adoption of the DSM-IV, for rating purposes) (2010). Turning now to the evidence, in June 2002 and August 2002, the Veteran appeared alert, oriented in all spheres and his speech was coherent and relevant. He was not delusional, paranoid or psychotic. He denied any suicidal or homicidal ideation and any auditory or visual hallucinations. Insight and judgment were good. He was diagnosed with recurrent major depression, a mood disorder secondary to medical problems and resolving insomnia. In June 2002, he was assigned a GAF score of 45. In August 2002, his GAF score was estimated between 45 and 50. In October 2002, the Veteran was alert, oriented in all spheres, coherent and relevant. He was not delusional, paranoid or psychotic. He did endorse fleeting thoughts of suicide, but denied any attempt or plan. He denied any homicidal ideation. He also denied any auditory or visual hallucinations. His judgment and insight were good, though his affect was down and sad. Speech was monotone, soft and low. Although he kept his head to the floor, he did make eye contact when answering questions. The diagnosis was recurrent major depression, a mood disorder secondary to medical problems and resolving insomnia. A GAF score between 45 and 50 was assigned. Per a December 2002 clinical record, the Veteran was continuing to experience nightmares, increased pain and crying spells. At that time, he was alert, oriented in all spheres, coherent and relevant. He was passively suicidal, but he contracted for safety. He denied any auditory or visual hallucinations or any homicidal ideation. Judgment and insight were fair. He denied any alcohol or street drug use or abuse. His GAF score was between 40 and 45. In January 2003, the Veteran was afforded a VA examination. He appeared alert and fully oriented. He denied any suicidal or homicidal ideation. He further denied any auditory or visual hallucinations, delusions or paranoia. He appropriately interpreted proverbs, had little difficulty with exercises testing recall and cognition. He did experience sleep difficulties and increased irritability. His speech was normal in rate and flow. Insight and judgment appeared fair. His GAF score was 40. In February 2004, May 2004 and December 2004, the Veteran presented with complaints of crying spells and irritability. He indicated that he did not drink regularly and denied any usage of illicit drugs. His appearance was neat and clean, and his hygiene was good. His affect was a bit down; however, he was able to converse openly and maintain good eye contact. He was oriented in all spheres. Speech was logical and coherent. He was not psychotic, delusional or paranoid. He denied any suicidal or homicidal ideation. Judgment and insight were good. In February 2004, his GAF score was estimated to be between 50 and 55. In May 2004, his GAF score was estimated to be between 55 and 60. In December 2004, he was assigned a GAF score of 55. In December 2005, the Veteran's appearance was neat and clean and his hygiene was good. He was oriented in all spheres. Speech was coherent and relevant. Memory, concentration and abstract thinking were good. He denied any auditory or visual hallucinations, delusions, paranoia or psychosis. He denied any suicidal or homicidal ideation. Judgment and insight were good. He was assessed a GAF score of 50. In February 2007, the Veteran presented with complaints of irritability and occasional feelings of helplessness and hopelessness. He denied any crying spells. Appearance was neat and clean. Hygiene was good and mood was euthymic. He was oriented in all spheres. Speech was coherent and relevant. He was not psychotic, delusional or paranoid. He denied any auditory or visual hallucinations. He also denied any suicidal or homicidal ideations. His GAF score was between 55 and 60. In August 2007 and January 2008, the Veteran complained of crying spells and depressed mood. His appearance was neat and clean, and hygiene was good. He was oriented in all spheres. Speech was coherent and relevant. He was not psychotic, delusional or paranoid. He denied any auditory or visual hallucinations. He denied any suicidal or homicidal ideations. He was assigned a GAF of 50. The Veteran was afforded an additional VA examination in July 2008. At that time, he was living with his wife and two children. He was getting along with his immediate family but experienced conflicts with his brother. He indicated that he rarely drank and was drug free except for medication. He was clean and casually dressed. He maintained poor eye contact and a slumped posture. Psychomotor activity was lethargic. Speech was unremarkable. Affect was constricted and mood was depressed. He was experiencing sleep difficulties characterized by nightmares and night sweats. He was also experiencing panic attacks, approximately twice a week, and suicidal ideation, at least once a week. Attention was intact. He was oriented in all spheres. Thought processes and thought content were unremarkable. There was no evidence of delusions. Judgment and insight were intact. He denied any hallucinations, obsessive or ritualistic behaviors or any episodes of violence. Impulse control was good. The examiner indicated that the Veteran's psychiatric disability had a moderate impact on his activities of daily living, such as household chores, shopping, engaging in exercise and traveling. It had no effect on toileting, grooming, self-feeding, bathing, dressing or driving. Upon psychological assessment, he endorsed symptoms of low self- worth, ruminating about physical problems, low libido, pessimism, anhedonia, indecisiveness, low energy, irritability, increased appetite, poor concentration, suicidal thoughts and insomnia. He was assigned a GAF score of 53. The examiner opined that the Veteran did not have total occupational and social impairment due to mental illness. He also indicated that the Veteran's mental illness did not result in deficiencies in judgment, thinking, family relations, work, mood or school. The examiner indicated that it was difficult to assess the impact of the Veteran's depression on his vocational functioning, given that he was receiving benefits form the Social Security Administration. The Veteran's depression was partially due to his back pain, but it was not the proximate cause of his unemployment. It was reasonable to assume that the Veteran's productivity would occasionally be moderately reduced by his depression. Upon VA examination in September 2010, the Veteran presented with complaints of isolative tendencies, irritability and severe depression. He was augmenting the effect of his pain medication with a six-pack of beer, two to three times a week. He had no hobbies or friends and had been unemployed since 1999. He was still married and lived with his wife and two children. The Veteran appeared clean and was casually dressed. Psychomotor activity was lethargic. His speech was slow. Affect was constricted and his mood was depressed. He reported that he often experienced problems with attention and concentration. Memory appeared intact. He was oriented in all three spheres. Thought process indicated a paucity of ideas. Thought content was unremarkable. There was no evidence of delusions or hallucinations. Judgment and insight were intact. The Veteran was averaging 12 to 15 hours of sleep a night. Occasionally, he did not sleep well due to nervous feeling about what people think of him. There was evidence of obsessive/ritualistic behaviors; he counted ceiling tiles and other objects when he was nervous. He denied any panic attacks or homicidal ideation. He did endorse suicidal ideation on a daily basis, but with no plan. Impulse control was fair in that he lost his temper two to three times a week. His psychiatric disability had a moderate impact on his activities of daily living, such as household chores. It had a slight effect on shopping. It had no effect on toileting, grooming, self-feeding, bathing, dressing or driving. The examiner noted that the Veteran avoided bathing at times when he was dressed, but he did possess ability to do it independently. He also avoided traveling with people when they drive because he got to anxious. He was assigned a GAF of 54. Upon psychological assessment, he endorsed severe symptoms of pessimism and punishment feelings. He endorsed moderate symptoms of loss of pleasure, suicidal thoughts, loss of interest, worthlessness, loss of energy, changes in sleep patterns, irritability, problems with concentration and loss of interest in sex. He endorsed mild symptoms of sadness, past failure, self- dislike, crying, agitation, indecisiveness, changes in appetite and fatigue. The examiner opined that there was no total occupational and social impairment due to mental illness. Additionally, the Veteran's mental illness did not result in deficiencies in judgment, thinking, family relations, work, mood or school. The examiner also noted that if the Veteran did not have pain or physical limitations, he would likely still have some depression and this would result in mild to moderate impact on vocational functioning. Following a review of the record, the Board finds that up until July 9, 2008, the 50 percent evaluation assigned most nearly approximates the Veteran's disability picture and that a higher evaluation is not warranted for that portion of the appeal. Indeed, during the period prior to July 9, 2008, the evidence of record is negative for a history of hospitalizations, or for symptoms of active suicidal or homicidal ideation. The evidence additionally fails to show impaired judgment and insight, speech or communication deficiencies, or near- continuous panic or depression affecting the ability to function independently, appropriately and effectively. Regarding impulse control, although the Veteran was irritable, he exerted great effort to control himself. Further, there is no demonstration of spatial disorientation or neglect of personal appearance. In fact, his appearance and hygiene were consistently noted to be good. Moreover, despite his isolative tendencies, the Veteran has maintained a relationship with his wife and two children. For the above reasons, assignment of the next-higher 70 percent evaluation prior to July 9, 2008, is not warranted. Moreover, this conclusion is not altered by the isolated indications of suicidal thought in 2002 and 2004. Indeed, other records reflect denials of any such thoughts and in 2002 there was no suicidal intent or plan. In July 2004, the Veteran did express a plan (to shoot himself), in response to situational depression relating to marital discord. In this regard, the Board is mindful of the need to consider "staged ratings" to account for temporal changes in disability picture. Hart v. Mansfield, 21 Vet. App. 505 (2007). However, as records from a VA admission at that time show an almost immediate improvement in mood once care was sought, the Board finds that the symptomatology was of such brief duration that a staged rating (of one single day) would have no meaningful impact here. Moreover, even at the time of the July 2004 hospitalization he denied hallucinations, was fully oriented and cooperative, thus exhibiting a disability picture still appropriately reflected by the 50 percent rating then in effect. Furthermore, regarding the lower GAF scores of 40, 45, and 50, such do not support a rating in excess of 50 percent during the period in question. Indeed, the GAF scores themselves are not deemed to be highly probative as to the Veteran's actual level of disability in this case. For example, a score of 40 should signify some impairment of reality testing, or major impairment in several areas, including family relations, judgment and thinking. Such has simply not been shown, even within the treatment reports containing such GAF score. More accurate are the GAF scores between 55-60, which reflect moderate symptoms already accounted for by the 50 percent rating in effect during the period in question. From July 9, 2008, however, the Board finds that a 70 percent evaluation is warranted. VA examination on that date indicated weekly suicidal thoughts, clearly showing significant disturbance in mood. He also showed anhedonia, low self-worth, and poor concentration. Moreover, subsequent VA examination in September 2010 also showed some obsessional rituals. Overall then, resolving any reasonable doubt in the Veteran's favor, the disability picture is deemed to most nearly approximate a 70 percent evaluation from July 9, 2008, onward. While a 70 percent evaluation is warranted for the Veteran's psychiatric disability from July 9, 2008, at no time during the appeal is the next-higher 100 percent rating justified. Indeed, he has consistently been oriented and has shown no severe memory or cognitive deficit or inability to perform activities of daily living as a result of his psychiatric disability. Moreover, despite suicidal ideation, he has not been shown to be a persistent danger to himself. In this regard, despite ideation, no suicide attempts have been made. There is also no showing that he is a persistent danger to others. Additionally, there is no grossly inappropriate behavior such as to justify a 100 percent rating. Finally, his GAF scores, while reflecting significant problems, do not indicate total occupational or social impairment. Thus, overall, his disability picture at no point enables assignment of a 100 percent rating. It is further noted that the Veteran's employability issues are attributable to a low back problem. In conclusion, the record fails to support a rating in excess of 50 percent for the period prior to July 9, 2008. From that date forward, a 70 percent evaluation is warranted. In reaching these conclusions, the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To the extent that the evidence of record indicates that the Veteran is unemployed, the Board will address the criteria under 38 C.F.R. § 4.16, addressing total disability rating based on individual unemployability (TDIU), as a component of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 451 (2009). In this case, none of the VA examiners have held that the Veteran's psychiatric problems have precluded employment; rather, his back disability (for which there is no active appeal before the Board) is what has prevented him from working. As such, the evidence fails to establish that he is unable to secure and follow substantially gainful employment, barring entitlement to TDIU at this time. Extraschedular Considerations The Board must determine whether the schedular evaluations are inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2010). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of depression, but the medical evidence reflects that those manifestations are not present here. The Veteran has only been hospitalized on one occasion due to suicidal ideation attributable to his psychiatric disability in 2004. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected depression. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In conclusion, the preponderance of the evidence is against assigning a disability rating in excess of 50 percent for depression. As the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in his favor. See 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Prior to July 9, 2008, an initial disability rating in excess of 50 percent for depression is denied. From July 9, 2008, an initial disability rating of 70 percent for depression is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs