Citation Nr: 1301647 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-14 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder, to include pain disorder, depression, and posttraumatic stress disorder (PTSD) prior to January 1, 2009. 2. Entitlement to a 100 percent rating for an acquired psychiatric disorder, to include pain disorder, depression, and posttraumatic stress disorder (PTSD) since January 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut which denied a rating in excess of 30 percent for a pain disorder, claimed as depression. In May 2009, the Board remanded the claim on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC for further development. After completing additional development, the AMC in a June 2010 rating decision granted a 70 percent rating for an acquired psychiatric disorder, to include pain disorder (claimed as depression) and PTSD, effective April 21, 2005. The appellant has not perfected an appeal with respect to the effective date assigned for the 70 percent rating. Hence, the Board has no jurisdiction to review that assignment. 38 U.S.C.A. § 7105 (West 2002). The Board again remanded the claim in March 2011, and the matter is now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. Prior to January 1, 2009, the Veteran's pain disorder, depression, and PTSD, was not productive of total occupational and social impairment. 2. Since January 1, 2009, the Veteran's pain disorder, depression, and PTSD, has been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 1, 2009, the criteria for a disability rating in excess of 70 percent for a pain disorder, depression, and PTSD, were not met. 38 U.S.C.A. §§ 1155, 5102, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2012). 2. Since January 1, 2009, the criteria for a 100 percent disability rating for a pain disorder, depression, and PTSD have been met. 38 U.S.C.A. §§ 1155, 5102, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In June 2005 VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. In correspondence dated in March 2006, VA provided notice of how disability ratings and effective dates are determined. Applicable rating criteria were set forth in correspondence dated in June 2009. The claim was readjudicated in a September 2012 supplemental statement of the case. Hence, any defect with regard to the timing or content of the notice to the appellant is harmless. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and, as warranted by law, affording VA examinations. Pursuant to the May 2009 and March 2011 remands, the AMC obtained additional VA treatment records and scheduled VA psychiatric examinations in April 2010 and March 2011. The Board finds there was substantial compliance with the previous remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate through the submission of various written statements. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of the adjudication with regard to the issue decided herein. 38 C.F.R. § 3.159(c). Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign an evaluation 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. A 70 percent evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when 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; danger of hurting self or others; 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, occupation, or own name. Id. A Global Assessment of Functioning rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (quoting the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). A Veteran's assigned global assessment of functioning score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the global assessment of functioning score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the global assessment of functioning score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). A global assessment of functioning score between 41 and 50 indicates that a veteran has 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. VA's Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's acquired psychiatric disorder, to include a pain disorder, depression, and posttraumatic stress disorder, is currently rated as 70 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Factual Background The Veteran was granted entitlement to service connection pain disorder (claimed as depression) in February 2003, with a 30 percent assigned rating. In April 2005 the Veteran requested an increased rating for depression, and in a June 2010 rating decision the AMC increased the evaluation to 70 percent, effective April 21, 2005. Following the findings of the April 2010 VA examination, VA expanded the Veteran's claim to include posttraumatic stress disorder, depression and a pain disorder. As the 70 percent increased rating does not constitute a full grant of all benefits possible for an acquired psychiatric disorder, and as the Veteran has not withdrawn his claim, the issue concerning entitlement to an increased rating for this disability is still pending. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's VA treatment records show that throughout the course of the appeal he has been receiving regular psychiatric treatment through individual and group counseling. In near monthly individual counseling sessions from September 2004 to March 2005 the Veteran reported suffering from symptoms that included difficulty sleeping, frequent crying, and anxiety. On multiple occasions it was found that he had difficulty remembering to take medications but was successfully avoiding gambling and alcohol. His treating medical professionals consistently found that he was well groomed, cooperative, had normal affect, fluent and normal speech, good judgment and insight, and he denied suicidal ideation. Since 2005 the Veteran's VA records indicate that increasing financial troubles were aggravating his mental health symptoms. In June 2005 the Veteran's mood was described as "sad," and he reported feeling "helpless and/or hopeless" and was having sexual problems. He also reported stress over financial concerns and depression due to his failed ice cream parlor business. In March 2006 the Veteran reported that he was working 6 hours per day and found it difficult to cope with the stresses related to work. From December 2006 to May 2007 the Veteran reported that his mood was better and that he was not feeling as depressed. In a June 2007 mental health evaluation, the Veteran's psychiatrist found that the appellant was relatively stable and diagnosed him with dysthymic disorder, major depression disorder in remission, and alcohol dependence in full sustained remission. In July 2007, the Veteran reported feeling mildly anxious because he had lost his part-time job, and in March and July 2008 the Veteran reported having decreased energy, anxiousness, and difficulty sleeping. He denied having a depressed mood or significant anxiety. In VA mental treatment reports since 2008 he frequently has been reported as having a depressed mood and often has expressed having frequent feelings of depression and crying spells. In February 2009, the Veteran began cognitive processing therapy. In an April 2009 session he described having PTSD-related symptoms, including nightmares, reactivity to cues, avoidance of trauma-related emotions, estrangement, diminished interest in activities, insomnia, and an exaggerated startle response. Also in April 2009 the Veteran first began admitting to having some passive suicidal thoughts. In May 2009 the Veteran reported feeling extreme anxiety and sleeping minimally in order to avoid nightmares. He admitted to his psychiatrist in September 2009 and April 2010 that he had hidden his suicidal thoughts from the psychiatrist in the past. In June 2009, the Veteran reported feeling generally less guilty after cognitive processing therapy, but still significantly troubled and with some suicidal ideation. His psychiatrist diagnosed PTSD and a major depressive disorder. In August 2009 the Veteran reported having stress from financial difficulties, relapsing into gambling, and recurrent nightmares. He denied any hallucinations, paranoia, or suicidal ideation. Later in 2009 the Veteran reported feeling depressed and somewhat suicidal, with a lack of motivation to do much beyond sitting on the couch. He reported sleeping more, up to 6.5 hours a night, with several hours of inability to sleep. He described having feelings of worthlessness and having a temptation to gamble. In November 2009, the Veteran reported not being able to motivate himself to do activities, such as yoga, which he had previously committed to, and having difficulty motivating himself to go to therapy. He admitted that overwhelming feelings of shame had caused him to miss several group therapy meetings. Since 2009 the Veteran has continued to attend private and group therapy and to discuss his feelings of guilt, stress over finances, gambling urges, and mild suicidal ideation. In January 2010, the Veteran reported having some suicidal urges, triggered by intense back pain. In March 2010 he reported that his relationship with his wife was good, but that he hid from her that he was continuing to gamble. In April 2010, he revealed that he had been able to discuss his gambling with his wife. He did, however, report dealing with flashbacks of traumatic events from earlier in his life. In June 2010 the Veteran discussed how he had started working as a coordinator for Disabled American Veterans, which led to both moments of confrontation and anger and also helped him to work on his own ability to be assertive. In March 2012, the Veteran reported that he was doing well and had started a new job working at VA. He denied feeling depressed, helpless, or hopeless. In May 2012 the Veteran reported that he was doing well emotionally and liked his new job at VA, but worried that full time work might be a "little bit too much for him." In August 2012 the Veteran reported that his medication was helping with his anxiety and insomnia and that he liked his new job at VA. Throughout 2012 the Veteran continued to consistently comment that he was doing well and denied having any serious depression or suicidal thoughts consistently until the last treatment of record in September 2012. The Veteran's private medical records deal primarily with treatment he has received for non-psychiatric medical issues. Records from HealthSouth Surgery Center and affiliated radiology centers from March 2001 to February 2006 show numerous treatments for joint pain of the back, neck, and shoulders. An application to the Connecticut Department of Labor completed by the Veteran's physician in June 2005 indicated that the Veteran was unable to work due to depression, low energy, and extreme fatigue. In October 2005, the Veteran was given a VA psychiatric examination. The Veteran reported having a depressed mood, fatigue, low motivation, restless sleep and insomnia, poor concentration, poor short-term memory, and decreased libido. He also reported that although he had returned to work, he was taking a day off every two weeks to rest and that his difficulty concentrating was making it more difficult to complete job tasks. The examiner noted that the Veteran was cooperative, had a depressed mood but a congruent affect. He spoke normally, showed no signs of hallucinations, and denied suicidal ideation. The examiner diagnosed recurrent major depressive disorder, moderate, and assigned a global assessment of functioning score of 50. The examiner opined that the Veteran's depression was primarily caused by his chronic pain and that having to return to work was increasing both his pain and his depression. In February 2006, the Veteran's psychotherapist wrote in a letter that severe pain and fatigue had led to personal issues and prevented the appellant from being able to maintain a full time job. In an April 2009 claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders the appellant reported last working on December 31, 2008. In April 2010, the Veteran was afforded an additional VA psychiatric examination. The examiner reviewed the Veteran's VA medical records, previous examination, and claims file. The Veteran reported having chronic back and neck pain, and that his ongoing pain and disability prevented him from working a full work week. The Veteran reported symptoms of depression, loss of appetite, insomnia, fatigue, sense of worthlessness and hopelessness, and suicidal thoughts. The Veteran reported having a good relationship with his wife but few other social interactions. He had lost interest in many activities and noticed a decrease in his personal hygiene, but was able to perform chores around the house. The examiner noted that the Veteran was adequately groomed, alert, and oriented. His speech was normal and logical, but the appellant's mood was blunted and mildly dysphoric. The examiner diagnosed a pain disorder, a moderate to severe chronic major depressive disorder without psychotic features, and an anxiety disorder not otherwise specified. He assigned a global assessment of functioning score of 45. The examiner also noted that the "complex interplay" between the Veteran's pain and emotional distress made it difficult to separate his various symptoms due to a specific etiological causes and assigned the global assessment of functioning score based on overall functioning. One of the Veteran's VA psychologists submitted a letter in December 2010 which further discussed how his depression was greatly exacerbated by his chronic pain. The Veteran was afforded a third VA psychiatric examination in March 2011. The examiner reviewed the Veteran's claims file and electronic medical records. The Veteran discussed his traumatic childhood and the deaths that he witnessed while serving in the Navy. The Veteran noted that he worked for a power station for 28 years until 2001, that he worked periodically for three years between 2003 and 2006, that he worked part time between 2006 and 2008, and that he had been unemployed since 2008. Mental status examination revealed that the Veteran was well-groomed, and had normal eye contact and speech with logical and coherent thought processes. There were no signs of hallucinations. The Veteran described a moderate to severe decline in occupational functioning due to mental health symptoms that accompanied his chronic and sometimes debilitating back pain. He also reported problems with sleeping, concentrating, and motivation. The Veteran reported having friends and a healthy relationship with his wife, but that he had a history of irritability and mood swings and had difficulty finding pleasure in activities. He reported nightmares, intrusive thoughts, avoidance symptoms, social isolation, depressed mood, fatigue, feelings of worthlessness, and recurrent thoughts of death. The Veteran also stated that he had panic symptoms approximately once a week and had a history of suicidal ideation, including two suicide attempts when he was younger. The examiner diagnosed chronic posttraumatic stress disorder, recurrent severe major depressive disorder without psychotic features, and a panic disorder without agoraphobia. The appellant was assigned a global assessment of functioning score of 48. The examiner opined that the Veteran's severe pain, PTSD, and major depressive disorder combined profoundly impacted his occupational functioning and mildly impacted his interpersonal relationships. In a September 2012 addendum opinion, the VA examiner noted that the Veteran's overall functioning, as represented by the global assessment of functioning score could not be assigned separately for panic disorder, but only to a "compilation of all the Veteran's symptoms and diagnoses." He also commented that the Veteran's depression was likely associated with his PTSD and pain disorder. In a September 2012 rating decision the appellant was granted entitlement to a total disability evaluation based on individual unemployability due to service connected disorders effective from April 27, 2010. The Board considered the various statements submitted by the Veteran. In a June 2005 statement, the Veteran wrote that he was unable to work full time due to back pain and depression and that working 4 to 5 days a week left him "physically and mentally exhausted." He indicated that he felt depressed, with "no sense of purpose," and spent most days "on the couch watching TV." In December 2005, the Veteran wrote that his place of employment would no longer be needing his services by the next month, and that this stress was increasing his panic attacks. In a statement accompanying his April 2006 substantive appeal, the Veteran reported that worries about work aggravated his panic attacks and that his physical and psychological disabilities had forced to take an early retirement from his previous full time job. Analysis Based on a review of the record, the Board finds that a disability rating in excess of 70 percent is not warranted prior to January 1, 2009, however, from that date a 100 percent schedular rating is in order. In this regard, at all times the record does not show any evidence of a gross impairment in the Veteran's thought processes or communication, nor is there evidence of persistent delusions or hallucinations. The appellant during the appellate term has never shown grossly inappropriate behavior, nor has he been in danger of hurting himself or others. He has been able to maintain minimal personal hygiene, he has not been disoriented to time or place, and he has not suffered such a severe memory loss due to his service connected psychiatric disorder that he cannot recall the names of close relatives, occupation, or own his name. The United States Court of Appeals for Veterans Claims, however, held in Mauerhan v. Principi, 16 Vet App 436 (2002), that to grant an increased rating for a psychiatric disorder it was not necessary to show all of the deficiencies. Indeed, the schedular criteria for a 100 percent rating are met if the service connected psychiatric disorder is productive of total occupational impairment. Considering the evidence from this latter perspective the record as early as June 2005 shows that examiners suggested that the appellant was unable to work due to depression. In February 2006, a psychologist found that the appellant was no longer able to perform a full time job. The Veteran's outpatient treatment records prior to January 1, 2009, however, regularly note the fact that he continued to work. Indeed, occupational evidence submitted by the Veteran himself shows that he continued to work through December 31, 2008. Hence, while employment undoubtedly was at times difficult, the fact is that the appellant was still able to work prior to January 1, 2009. As such, entitlement to an evaluation in excess of 70 percent for a pain disorder, depression, and posttraumatic stress disorder prior to January 1, 2009, is not in order. Van Hoose v. Brown, 4 Vet.App. 361 (1993) (The assignment of a compensable rating itself is recognition that industrial capabilities are impaired.) The evidence, however, is at least in equipoise relative to the assignment of a 100 percent schedular rating for a pain disorder, depression, and posttraumatic stress disorder effective from January 1, 2009. In this regard, the former opinions concerning the appellant's ability to work were echoed by other examiners, to include those of an April 2010 examiner who found that the Veteran could not work, and a March 2011 examiner who found the Veteran's disorder to profoundly impact his ability to work. Further, the record shows that the appellant frequently suffers from suicidal ideation. Accordingly, effective January 1, 2009, the Board will grant a 100 percent rating for pain disorder, depression, and posttraumatic stress disorder. ORDER Entitlement to a rating greater than 70 percent for an acquired psychiatric disorder, to include pain disorder, depression, and posttraumatic stress disorder prior to January 1, 2009, is denied. Entitlement to a 100 percent rating for an acquired psychiatric disorder, to include pain disorder, depression, and posttraumatic stress disorder effective January 1, 2009, is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs