Citation Nr: 1221925 Decision Date: 06/22/12 Archive Date: 07/02/12 DOCKET NO. 06-09 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 50 percent for major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Associate Counsel INTRODUCTION The Veteran had active service from December 1992 to April 2004. This appeal comes to the Board of Veterans' Appeals (Board) from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In that decision, the RO granted the claim for service connection for major depressive disorder and an assigned a 10 percent rating from the date of separation from service. The RO also denied a claim for service connection for the right thumb. In October 2004, the Veteran filed a notice of disagreement with this rating. In May 2008 and March 2010, this claim was remanded for further development. In October 2011, the RO awarded an increased rating of 50 percent from the date of claim; the claim continues on appeal. See, AB v. Brown, 6 Vet. App. 35, 38 (1993). Also, the RO granted the claim for service connection for the right thumb; this claim is no longer on appeal. The Board finds there has been substantial compliance with the past remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In July 2006, the Veteran testified before the undersigned at a Board videoconference hearing. A copy of the transcript has been reviewed and is in the file. FINDING OF FACT For the period on appeal, the major depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW For the period on appeal, the criteria for a rating in excess of 50 percent for major depressive disorder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, Diagnostic Code 9411 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and to Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2011). This claim is an appeal of the initial rating assigned in conjunction with the grant of service connection. Once service connection is granted, the claim is substantiated and prior notice defects are rendered non-prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008). VA's duty to notify with respect to these claims has been satisfied. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the Veterans Law Judge clarified the issue on appeal and elicited testimony about the severity of the service-connected major depressive disorder disability. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) no one has identified any prejudice in the conduct of the Board hearing. VA also has a duty to assist the Veteran with respect to her claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011) and 38 C.F.R. § 3.159(c) (2011). Service treatment records have been associated with the claims file. All identified and available VA records relevant to the present claim have been secured. The Veteran was medically evaluated in conjunction with her claims and a fully explanatory addendum to the VA examination report was provided. The duty to assist has been fulfilled. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2011). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 50 percent rating for service-connected major depressive disorder under Diagnostic Code 9411. 38 C.F.R. § 4.130, DC 9411 (2011). A 50 percent rating is assigned 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. A 70 percent rating is assigned when the psychiatric condition produces 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. A maximum 100 percent rating is assigned when there is total occupational or 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. 38 C.F.R. § 4.130, DC 9411 (2011). 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). In this case, the Veteran has been assigned Global Assessment of Functioning (GAF) scores of either 65 (see the May 2009 VA examination report) or 50 through 75, as demonstrated in the VA treatment records. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126 (2011); VA O.G.C. Prec. Op. No. 10-95 (Mar. 1995). According to the DSM-IV, GAF scores of 41 through 50 represent 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). Scores 51 to 60 reflect moderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, and school functioning (e.g. few friends, conflicts with peers or co-workers). See DSM-IV. Scores of 61 to 70 reflect 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. Id. Scores of 71 to 80 reflect that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational or school functioning (e.g., temporarily falling behind in schoolwork). The history of the Veteran's disability is shown by service treatment records which show a June 2003 diagnosis of major depressive disorder. She attended mental health sessions regularly up until August 2003. That month, private emergency room records showed she injected herself with epinephrine; she said she had been under a lot of stress and attempted suicide. She was admitted to the intensive care unit; it was noted the amount of the drug injected would cause diffuse coronary spasm. ("This may very well be quite similar to a cocaine overdose.") An August 2003 line of duty determination determined the cause of her injury was intentional misconduct coupled with a state of moderate major depressive disorder. The Medical Evaluation Board (MEB) noted major depressive disorder, moderate, single episode, with mild social and industrial adaptability impairment and a GAF score of 55. A November 2003 psychiatric addendum for MEB noted the Veteran had improved greatly, with her stress reduced and medication compliance. The GAF score was 65. An April 2004 report of medical assessment stated that at this point her psychiatric problem was reasonably well-controlled. The July 2004 VA examination report showed a diagnosis of major depressive disorder, single episode, resolving and a GAF score of 60. This examination report showed the Veteran had symptoms such as depressed mood, anxiety, increased sleep and irritability. She did not have symptoms of mania, psychosis or posttraumatic stress disorder (PTSD). She had plans for the future and denied active plans for suicidal ideation. In November 2004, she was initially interviewed by a clinician who described the disability as "moderate major depressive disorder" and assessed a GAF score of 50. Another record from the same month showed a score of 55, however. From 2005 to 2009, the major depressive disorder was mostly described as "mild" (see February 2005, April 2005 and August 2008 VA mental health records). The GAF scores ranged from 60 to 75. These records demonstrate symptoms such as depressed mood, anxiety, fatigue, social relationship problems in and outside the home, and disturbances of motivation and mood. In May 2009, the Veteran attended a new VA examination. She related that she had been working at a social service job, but then left due to issues related to clients. She began a new job working with a vocational program through VA. She also related ongoing problems with a neighbor. The GAF score assessment was 65. Symptoms such as fatigue, depressed mood, anxiety, irritability, relationship problems and disturbances in motivation and mood were noted. The examiner described the disability as recurrent and mild. In a May 2010 addendum, the examiner explained that the Veteran had some situational stressors in May 2009 (being threatened by a male neighbor and harassment at work). The Beck Depression Inventory results were therefore inflated as the Veteran was temporarily over-reporting; the examiner explained that this was not a permanent worsening or increase (at time of addendum, Veteran was rated at 10 percent). The examiner noted that the Veteran remained employable and was able to tolerate the stress, schedule requirements, and interpersonal interactions inherent in any employment setting. Here, the Board finds that an increased rating in excess of 50 percent is not warranted because the higher ratings do not best approximate the symptoms shown. Total occupational and social impairment symptoms (such as persistent delusions or disorientation to time and place) are not shown by the evidence. Also, while the Veteran does have some difficulty in adapting to stressful circumstances (including work or a work like setting) and that she suffered a past suicide attempt while in service, other symptoms are not shown. Medical records do not show and the Veteran does not report obsessional rituals, speech or communication problems, impaired impulse control or violence, or disorientation. The totality of the evidence shows the Veteran's personal appearance is adequate and at many points she was able to achieve and function at school, work, and in taking care of her children and family. Near-continuous panic or depression was not shown; the VA treatment records show she functioned independently, appropriately and effectively at work and in the home. As a result, the record does not support a finding of occupational and social impairment with deficiencies in most areas (work, school, family relations, judgment, thinking or mood) or that symptoms typify a 70 percent rating. The Board finds the evidence more closely approximates the criteria for a 50 percent rating. The service-connected major depressive disorder generally shows occupational and social impairment with reduced reliability and productivity due to symptoms such as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The record does show some family and relationship difficulties but the balance of the records show the Veteran managed stress adequately. Some symptoms under this rating were not shown; including a flattened affect; speech problems; panic attacks more than once a week; memory impairment; impaired judgment and abstract thinking. The Veteran did have symptoms such as fatigue and an increased amount of sleep. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. 3.321 are applied. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, the Board finds the rating schedule adequately addresses the symptoms of the service-connected major depressive disorder, as described above. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture and no further analysis is necessary. Thun, 22 Vet. App. at 115-16. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the Board does not find evidence of unemployability is raised by the record or Veteran; as shown by the evidence, including a July 2010 contact report, the Veteran is employed by VA. The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Hart, 21 Vet. App. 505. However, the weight of the credible evidence demonstrates that throughout the pendency of the appeal, the major depressive disorder has not warranted a rating higher than 50 percent. (CONTINUED ON NEXT PAGE) Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011). ORDER A rating in excess of 50 percent for service connection major depressive disorder is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs