Citation Nr: 1116528 Decision Date: 04/28/11 Archive Date: 05/05/11 DOCKET NO. 09-06 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 50 percent disabling for acquired psychiatric disorders, to include major depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L.M. Yasui, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1996 to July 1996 and from October 1999 to December 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT The Veteran's psychiatric symptomatology has included, primarily, depressed mood, difficulty falling or staying asleep, difficulty concentrating, avoidance of others, diminished interest or participation in activities, and some impairment of social and occupational functioning; collectively, these symptoms are not indicative of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent disabling for service-connected acquired psychiatric disorders, to include major depressive disorder and PTSD, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.6, 4.7, 4.10, 4.21, 4.130, Diagnostic Codes 9434 and 9411 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that the Veteran has been awarded total disability based upon individual unemployability (TDIU), effective the date of the claim for an increased evaluation of the Veteran's acquired psychiatric disorders. The Veteran and her representative have not withdrawn the current claim before the Board. Thus, the Board must proceed with this case. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. Service connection was established for an acquired psychiatric disorder in a July 2006 rating decision and a 30 percent disability rating was assigned. The Veteran did not perfect his appeal of that decision with a timely substantive appeal. When the Veteran filed his current claim in August 2007, a 30 percent evaluation was in place. The April 2008 rating decision on appeal continued the 30 percent disability rating. A rating decision in June 2009 increased the Veteran's evaluation of her acquired psychiatric disorder to 50 percent disabling and assigned an effective date of August 31, 2007, the date of the claim for an increased rating. The Veteran's acquired psychiatric disorders, to include major depressive disorder and PTSD are rated under Diagnostic Code 9434. See 38 C.F.R. § 4.130. A 50 percent evaluation contemplates 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. Under Diagnostic Code 9434, a 70 percent evaluation is warranted 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; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted 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; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM- IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The Board observes that the words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. A VA outpatient treatment report from December 2006 indicated that the Veteran reported suicidal ideations a week prior to treatment. She reported thinking about cutting her wrists or taking an overdose of pills, however, she thought about her children and the suicidal thoughts subsided. Since that time, the Veteran reported no further suicidal or homicidal ideations. Upon further examination, the Veteran appeared appropriately dressed, groomed, cooperative, and friendly. She was alert and fully oriented with logical and coherent thoughts. Her mood appeared depressed with congruent affect. Another VA outpatient treatment report from March 2007 indicated that the Veteran had problems with anxiety, extreme fatigue, and difficulty falling asleep. She reported that she had been managing her anger well and was enjoying attending parenting classes. At that time, the Veteran reported no suicidal or homicidal ideations. She was appropriately dressed and groomed, cooperative, friendly, and appeared alert and fully oriented with logical and coherent thoughts. Her mood appeared depressed with congruent affect. In an August 2007 VA outpatient treatment report, the Veteran indicated that she had noticed an improvement with her depressed mood, irritability, and crying spells, but continued to have problems with anxiety, sleep interruptions, startled response, flashbacks, and nightmares. A June 2008 VA outpatient treatment report indicated that the Veteran had depressed mood with suicidal ideations, fatigue insomnia, decreased appetite, poor concentration and guilt. While the Veteran reported having suicidal ideations, she did not have a plan or intent, and also reported that thoughts of her children would prevent her from carrying out suicide. Specifically, while the VA treatment record shows borderline symptoms favoring an increased rating, such as the Veteran's sporadic suicidal ideation, the Veteran never indicated intent regarding the suicidal ideations, and the VA treatment records, as a whole, do not demonstrate that the Veteran had severe obsessional rituals, incoherent speech or thought processes, inability to function, or any similar symptoms representing the severity required for the higher rating. The record also reflects that the Veteran underwent two VA examinations for her psychiatric disabilities during the appeal period. In March 2008, the Veteran was afforded a VA psychiatric evaluation. There, the examiner indicated that the Veteran had an average number of friends (about five very close friends) and no particular extracurricular activities. The Veteran's family role functioning and self care appeared to be "good," but social functioning was "not so good," according to the examination report. Upon examination, the Veteran had no impairment of thought process or communication and had no delusions or hallucinations. She denied suicidal or homicidal thoughts, ideations, plans, or intent. At that time, the Veteran had an adequate ability to maintain minimal personal hygiene and other basic activities of daily living. Her short and long-term memory was grossly intact and she had no obsessive or ritualistic behavior which interfered with routine activities. She was fully oriented and had no recently impaired impulse control. The Veteran also indicated that she had poor sleep and felt sleepy all day with no energy. In addition, the Veteran also endorsed feelings of avoidance, alienation from others, hopelessness, irritability, difficulty concentrating, hypervigilence, and exaggerated startled response. She was ultimately diagnosed with PTSD and Dysthymic Disorder. At that time, the examiner assigned the Veteran a GAF score of 60. He noted that the Veteran was capable of managing her financial affairs and has good personal and family role functioning, however, her social functioning had declined. The examiner was not clear as to whether the Veterans' PTSD was related to her unemployment. Rather, the examiner noted the Veteran's statement that "she did not feel like working, which could be interpreted to mean that she prefers domestic pursuits." The Veteran's overall disability picture from the March 2008 VA examination continues to show that the Veteran's symptoms cause only occupational and social impairment with reduced reliability and productivity and do not cause occupational and social impairment with deficiencies in most areas. The Veteran underwent another VA psychiatric examination in September 2009. Upon questioning, the Veteran's level of functioning was described as quite marginal in that she rarely got dressed in street clothes. The Veteran also reported neglect of her children, however, when pressed for specific details, the Veteran merely reported that she does not take her two-year old to the park and requests at least twice daily to be given 30 minutes away from her baby. The Veteran reported significant memory difficulties, yet the examiner noted that the Veteran is the person who manages the household finances successfully. Also, the Veteran reported anxiety in public although she met her current husband of four years at a night club. The Veteran stated that she married her current husband in 2005, although she dated her difficulties as occurring during the period she dated and ultimately married her husband. This discrepancy, the examiner noted, made the Veteran's reliability "somewhat questionable [and] likely elaborated to some extent." It was also noted that the Veteran was sitting in a relaxed fashion in the waiting room with other patients present, which the examiner noted argued against significant anxiety. Such findings not only provide evidence against this claim, but undermine the current TDIU disability determination. Upon psychiatric examination, the examiner indicated that the Veteran had a clean appearance, was cooperative and attentive, had mildly restricted affect, and had dysphoric mood. Of significance, the examiner noted that with respect to thought process, the Veteran demonstrated spontaneous speech production that was often vague and difficult to clarify. Thus, the examiner suggested that "[t]here remains a question of elaboration of symptoms as they [often] change during the exam. As an example, [the Veteran] vacillated regarding which ear she had problems with ringing." Also, the examiner concluded that the Veteran's extent of her reported memory difficulties was not objectively supported by her mental status exam or her ability to maintain the household finances. Specifically, the examiner noted that the Veteran's cognitive examination was not consistent with medically driven cognitive difficulties. For example, the Veteran could not recall remote information but could recall more recent events, which the examiner noted is contrary to what is found in true memory difficulties. In addition, the examination report reveals that the Veteran understood the outcome of her behavior, had average intelligence, but had problems with her sleep. She had no inappropriate behavior, no obsessive or ritualistic behavior, no panic attacks, no suicidal or homicidal thoughts, and good impulse control. The examiner indicated only "slight" problems with activities of daily living such as household chores, grooming, shopping, dressing/undressing, traveling, and driving. However, the Veteran was able to maintain minimum personal hygiene. Specifically, the examiner noted that the Veteran does not get dressed in street clothes and stays in her pajamas. She reported becoming anxious when shops are crowded so she tended to go later in the evening. She reported feeding the children but sometimes eats when anxious or stressed. She did not have any friends or family in the area and thus, did not go out. At that time, the Veteran was again assigned a GAF score of 60. The examiner explained that the Veteran reported moderate difficulties in her interpersonal relationships as evidenced by arguments with her husband. However, while the Veteran is unemployed, the examiner also noted that she is able to maintain household accounts and cares for her minor children, arguing against significant impairment. Ultimately, the examiner concluded that the Veteran had reduced reliability and productivity, however, there was no total occupational and social impairment resulting in deficiencies in judgment, thinking, family relations, work, or mood. In short, the symptoms noted in the September 2009 examination report in conjunction with the examiner's opinion regarding their affects on the Veteran's daily life weigh heavily against the assignment of a higher rating or even the current rating. Specifically, the examiner stated that the symptoms' affect on daily functioning are "slight" and the Board's review of the evidence, overall, failed to reveal symptoms of the severity necessary to assign a higher rating. The Board also reviewed documents from the Social Security Administration (SSA). However, it appears that SSA largely based its findings on copies of VA outpatient treatment records already discussed herein. Other medical records from the SSA do not provide any additional favorable evidence to the Veteran's claim for an increased evaluation of her acquired psychiatric disorders. Finally, assessing the Veteran's overall picture of functioning and disability indicates that a rating higher than 50 percent is not warranted for any period of time on appeal. The Veteran has had some sporadic history of suicidal ideations, but never demonstrated intent. Also, VA examinations indicated that the Veteran demonstrated some impaired impulse control. However, the evidence of record, as a whole, demonstrates that the Veteran does not have obsessional rituals which interfere with routine activities, intermittently illogical obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships. Indeed, the Veteran provides the majority of the care for her children and remains married despite reported marital difficulties. In any event, an increased rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The evidence of record shows that the Veteran's acquired psychiatric disorders, to include major depressive disorder and PSD, are appropriately evaluated at a disability rating of 50 percent. The Board finds that the Veteran's statements regarding her condition are outweighed by the VA examinations and the post-service medical record, which are found to provide, overall, evidence against this claim. While the Veteran has moderate problems associated with her psychiatric disabilities, this is the basis for the 50 percent evaluation. The Board does not find evidence that the rating assigned for the Veteran's acquired psychiatric disorders, to include major depressive disorder and PTSD, should be increased for any other separate period based on the facts found during the entire appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. As such, the claim must be denied. The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2010). Extraschedular To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2010). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The U.S. Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Further, the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has considered an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) and determined referral for extraschedular consideration is not warranted in this case. Ratings have been assigned that contemplate the disability and symptomatology of each manifestation of the Veteran's disability resulting from acquired psychiatric disorders, to include major depressive disorder and PTSD. There are no manifestations of the Veteran's acquired psychiatric disorders that have not been contemplated by the rating schedule and an adequate evaluation was assigned based on evidence showing the symptomatology and/or disability. Indeed, there is no evidence of record reflecting any hospitalizations due to her acquired psychiatric disorders. Also, in the present case, the Veteran has been in receipt of a 100 percent rating for TDIU from August 31, 2007, the date of the claim for an increased rating for her acquired psychiatric disorders, to include major depressive disorder and PTSD. Thus, while she may have marked interference with employment, such has already been appropriately recognized and the application of the regular schedular standards for evaluating her disabilities is not rendered impracticable. Hence, assignment of an extraschedular evaluation under 38 C.F.R. § 3.321 (2010) is not warranted. Duties to Notify and Assist The Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in October 2007 and July 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Vazquez-Flores v. Peake, 22 Vet App. 137 (2008), the Court held that more specific notice was necessary for an increased rating claim, to include providing the applicable rating criteria. However, Vazquez-Flores 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, 580 F.3d 1270 (2009). In any event, while not required, the Veteran was provided with the specific language of the diagnostic criteria in post-adjudicatory documents. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs