Citation Nr: 1301835 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-41 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased rating for major depression, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1973 to February 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A March 2009 decision of the VA RO continued the 30 percent rating of the Veteran's service-connected major depression. The Veteran presented testimony at an August 2011 hearing before the undersigned. A transcript of that hearing has been associated with the Veteran's claims file. In November 2011, the issue was remanded for additional development. The issue has since been returned to the Board. FINDING OF FACT The Veteran's service-connected depression is manifested by symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation; the weight of the evidence is against a finding of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for an acquired psychiatric disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in November 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The November 2008 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided VA examinations in February 2009 and March 2012 to determine the nature and severity of the Veteran's depression. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Claim for Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained 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. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability thereafter are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of 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. The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 for major depressive disorder. Diagnostic Code 9434 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the Veteran's case, major depressive disorder. In any event, with the exception of eating disorders, all mental disorders including major depressive disorder are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9434. Under these criteria, major depressive disorder is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130 (2012). The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows: 100 percent: 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 and place; memory loss for names of close relatives, own occupation or name. 70 percent: 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); inability to establish and maintain effective relationships. 50 percent: 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 establishing effective work and social relationships. 30 percent: Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). Global Assessment of Functioning (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 71 and 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 school work). GAF scores ranging between 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, and has some meaningful interpersonal relationships. Scores ranging 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). A score of 41 to 50 reflects serious symptoms, such as suicidal ideation or serious impairment in social or occupational functioning (e.g., no friends or unable to keep a job). See 38 C.F.R. § 4.130 (2010) [incorporating by reference the VA's adoption of the DSM-IV for rating purposes]. Factual Background During a December 2008 fee-based examination, the Veteran complained of symptoms of anxiety, tremors, depression, tearfulness, nightmares, sleep impairment, and anger that had begun in 2008. He also reported trouble sleeping that had begun in 2000. Upon mental status examination, the examiner noted appropriate appearance, hygiene, and behavior. The Veteran showed findings of disturbance of motivation and mood, anxiety, daily depressed mood, impaired impulse control and unprovoked irritability. He also had body tremors and tearfulness. Communication and speech were within normal limits while concentration and focus were poor. The examiner noted panic attacks were present and occur near-continuously and affect the ability to function independently. There was no delusional or hallucination history. The Veteran's thought processes were appropriate and judgment was not impaired. Abstract thinking was normal. Memory appeared to be impaired to a mild degree including forgetting names, directions, and recent events. Suicidal and homicidal ideation was absent. The diagnoses were posttraumatic stress disorder (PTSD) and major depression. The examiner noted that the diagnoses were related and the primary diagnosis is PTSD which worsens the Veteran's depression. The symptoms of each mental disorder cannot be delineated from each other. A GAF score of 45-50 was assigned. The examiner opined that the Veteran's PTSD symptoms effect his employment and overall quality of life due to having a fragile mood. The examiner noted he was intermittently unable to perform activities of daily living (but he can provide self-care) because of his mood. The examiner opined that the Veteran's psychiatric symptoms together caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the Veteran is functioning satisfactorily with routine behavior, self care and normal conversation. At a February 2009 VA examination, the Veteran reported having depression on a daily basis related to his declining health and related service-connected disabilities. He reported having depressed mood, negative thinking, and thoughts about death, anxiety, loss of energy, excessive fatigue, and sleep disturbance. The Veteran stated that he has worked for the past year at VAMC as a nursing assistant. He further reported that he has been with his common law wife for 20 years and that he has three children with her. The examiner described the Veteran as being appropriately dressed and groomed. He was oriented times four, made good eye contact during the interview, exhibited no inappropriate behaviors. Additionally, his attention, concentration, and memory were within normal limits. The Veteran's speech and communication were not impaired, and there was no evidence of a thought disorder. The Veteran denied having hallucinations or delusions, as well as suicidal or homicidal ideations, but he did admit to thinking about death frequently. The examiner stated that the Veteran was capable of handling his own financial affairs. A Global Assessment of Functioning score of 70 was assigned. The examiner stated that his symptoms are consistent with diagnostic criteria for major depression. The examiner stated that the Veteran exhibits symptoms associated with PTSD; however, he does not meet sufficient criteria for PTSD. The examiner stated that he had mild social and occupational impairment associated with depression. The level of functioning had not changed since the last examination. The Veteran testified at a hearing in August 2011. The Veteran stated that his depression has become worse and that he can get a job but he cannot keep a job. He reported he is often late and takes excessive leave. VA progress notes indicate ongoing treatment for depression. In a November 2009 note, the Veteran's mental health provider wrote a note stating that it would be good if the Veteran able to retire as his pain would decrease resulting in a decrease in his depression. In July 2010, the Veteran was noted to be upset after a death on the ward where he works, though he was handling his feelings appropriately. In July 2011, the Veteran was noted to become upset and take some time off work after learning about some upsetting family history. On March 2012, the Veteran was noted to be doing well on trazedone, but getting used to it and it was increased. In a progress note dated in May 2011, the Veteran was noted to be doing well overall. VA progress notes indicate continuing group and individual therapy. A VA examination was conducted in March 2012. The diagnosis was moderate major depressive disorder and an assigned GAF score of 65. The examiner concluded that the Veteran's psychiatric symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran complained of symptoms including depressed and anxious mood, chronic sleep impairment and disturbances of motivation and mood. The Veteran reported he continues to be a psych tech on the inpatient psychiatric unit at the Jack C Montgomery VAMC. He denied having any problems related to depression which impact his job performance, and he reported that he loves his job so much that he would volunteer there if he was not a paid employee. There are occasionally days where the Veteran reports feeling as if he cannot get up and go to work. He continues to live with his common law wife with whom he has a grown stepdaughter and daughter and a son who is a senior in high school. He has a good relationship with all three children. The Veteran reported having a difficult relationship with his wife. The examiner noted that there has been no significant change in social or occupational functioning since the last exam. The Veteran is currently treated with 2 different antidepressants and also hydroxyzine use for anxiety if needed. He experiences depressed mood which varies in frequency depending on his amount of pain. It also depends on what has happened at home with his common-law wife. With respect to the impact on social and industrial functioning; the Veteran sometimes feels withdrawn from others but overall gets along with people other than his wife. The examiner opined that the Veteran has mild impairment with respect to industrial or occupational functioning and that he is not unemployable. In regards to the Veteran's testimony that he cannot keep a job, the examiner notes that prior to becoming sober, the Veteran did have some problems maintaining employment. However, he has worked for the Jack C. Montgomery VAMC for 7 years and on the inpatient unit for 6 years which indicates he is able to maintain employment. Analysis In this case, the Board finds that the preponderance of the medical evidence of record does not establish that the Veteran's depression symptoms meet the criteria for a higher, 50 percent rating. As shown above, the February 2009 and March 2012 VA examiner noted that the Veteran had only mild social and occupational impairment associated with depression. The Board notes that during a December 2008 fee-based examination, the examiner noted findings of disturbance of motivation and mood, impaired impulse control, and near-continuous panic attacks affecting the ability to function independently which are symptoms of a higher rating. However, none of these findings are noted during the other examinations in the file, including a VA examination dated only three months later. The Veteran also did not endorse any other symptoms indicative of a higher rating including suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, spatial disorientation, difficulty adapting to stressful circumstances, and inability establish and maintain effective relationships. In fact, during this time, the Veteran had been working for four years without any time lost from work and with maintained good relationships with his boss and co-workers, and significant other and children. Moreover, when summarizing the overall impact of the Veteran's service connected psychiatric disorder, the December 2008 examiner indicated that the Veteran's psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks which is consistent with a 30 percent disability rating as well as the findings rendered by the 2009 and 2012 examiners. The Board acknowledges that the Veteran's GAF scores during this period have been noted as between 45 and 70. The GAF score of 45-50 was assigned during the December 2008 fee-based examination, indicates severe symptoms according to the DSM-IV; however, this finding is inconsistent with the examiner's opinion that the Veteran psychiatric symptoms cause occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. GAF scores of 70 and 65 were noted during VA examinations, and indicate mild symptoms according to the DSM-IV, which the Board finds is generally consistent with the 30 percent rating assigned herein. In any event, the Board ultimately places more probative weight on the more detailed narrative findings noted above. Based on the foregoing, the Board concludes that the overall level of impairment from depression is not consistent with occupational and social impairment with reduced reliability and productivity as contemplated by a higher rating. Accordingly, a disability rating in excess of 30 percent is not warranted. In reaching the above conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for his depressive disorder on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which 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) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 attendant thereto 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's depressive disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's depressive disorder with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his disability renders him totally unemployable. Indeed, the VA examiner indicated that the disability would have mild effects on the Veteran's usual occupation. Accordingly, the Board concludes that a claim for TDIU has not been raised. In summary, the Board concludes that the preponderance of the evidence is against granting a disability rating in excess of 30 percent for the Veteran's depression disorder. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). ORDER Entitlement to an increased rating for major depression, currently evaluated as 30 percent disabling, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs