Citation Nr: 1305103 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-43 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for psychiatric disability described as dysthymic disorder and insomnia (previously shown as depression and sleepiness). 2. Entitlement to a total disability evaluation on the basis of individual unemployability (TDIU) due to service-connected disability. ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from March 1988 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for a psychiatric disability described as dysthymic disorder and insomnia (previously shown as depression and sleepiness), evaluated as 70 percent disabling effective October 3, 2007. The Veteran submitted a formal application for TDIU in August 2009, and in February 2010 the RO issued another rating decision denying entitlement to a rating in excess of 70 percent for the psychiatric disability and to TDIU. The Veteran's notice of disagreement was received later that month. The Veteran's notice of disagreement specifically listed her appeal as pertaining to the denial of entitlement to a TDIU; but also incorporated language from the rating schedule referable to rating psychiatric disabilities. The RO construed the notice of disagreement as encompassing the issue of entitlement to an increased rating and issued a statement of the case with regard to both issues. This determination is consistent with VA's duty to liberally construe the pleadings of pro se claimants. Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001) The Veteran indicated in her substantive appeal both that she wanted to appeal all issues on the statement of the case and that the issue on appeal was entitlement to TDIU. The RO has certified both issues as being on appeal. The Board is essentially bound by this determination. Percy v. Shinseki, 23 Vet. App. 37 (2009). Although the Veteran did not submit a notice of disagreement with regard to the May 2009 rating decision, she did submit new and material evidence within one year of that decision. This was in the form of a private treatment record in which it was opined that her psychiatric disability precluded gainful employment. That evidence prevented the initial rating decision from becoming final prior to readjudication of the issue. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. § 3.159(b) (2012). Because the Veteran perfected an appeal from the readjudication that took place in February 2010, her appeal is recognized as stemming from the initial rating decision. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently records pertinent to the appeal in that file. Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT 1. Prior to May 1, 2009, the Veteran was gainfully employed and her psychiatric disability did not cause total occupational and social impairment. 2. Since May 1, 2009, the Veteran's service connected psychiatric disability has been manifested by symptoms approximating nearly total social and occupational impairment. 3. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for the Veteran's service connected psychiatric disability were not met prior to May 1, 2009. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2012). 2. The criteria for entitlement to TDIU were not met prior to May 1, 2009. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). 3. The criteria for a 100 percent rating for the Veteran's service connected psychiatric disability have been met since May1, 2009. 38 U.S.C.A. § 1151; 38 C.F.R. § 4.130, Diagnostic Code 9434. 4. The grant of a 100 percent rating for the service connected psychiatric disability renders moot the claim for TDIU. 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appeal arises from the initial rating following the grant of service connection. The TDIU issue is an element of the initial rating. Rice v. Nicholson, 22 Vet. App. 447, 453 (2009). The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice as to downstream issues is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This 'duty to assist' contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service treatment records and private medical records as well as all pertinent records from the Social Security Administration. In addition, the Veteran was afforded VA examinations to evaluate her service connected psychiatric disability. Initial Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances 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 therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating 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 also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. Although the RO has described the Veteran's disability as dysthymic disorder, it has rated the disorder under 38 C.F.R. § 4.130, Diagnostic Code 9434 for major depression, rather than Diagnostic Code 9433, which pertains to dysthymic disorder. In any event both disorders are rated according to the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent disability rating is warranted when 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; 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 worklike setting); and inability to establish and maintain effective relationships. The General Rating Formula provides a 100 percent rating 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; persistent danger of hurting self-or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives. Own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board has considered the Global Assessment of Functioning (GAF) scores assigned during the appeal period. The GAF score 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 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). GAFs between 31 and 40 indicate some impairment in reality testing orcommunication (e.g. speech is at times illogical, obscure or irrelevant) or there is major impairment in several areas, such as work or school , family relations, judgment, thinking or mood (e.g., a depressed man avoids friends, neglects family and is unable to work); GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). GAF scores ranging from 51-60 reflect 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); and GAF scores ranging from 61 to 70 means there are some mild symptoms. Id. Where the symptoms of a service-connected disability cannot be distinguished from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). If the diagnosis of a mental disorder is changed, the rating agency will determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error or a new and separate condition. 38 C.F.R. § 4.125(b) (2012). Although the Veteran has been diagnosed as having psychiatric disabilities other than dysthymic disorder and major depression, including anxiety disorder and PTSD, the portion of the Veteran's impairment that is due to dysthymic disorder and major depression has not been distinguished from that portion which is due to other psychiatric disabilities. Indeed, the different diagnoses appear to be different labels applied to the same service connected condition. Accordingly, the Board will consider the disability; however diagnosed, as the same service connected disability. The undisputed record shows that the Veteran was gainfully employed until some time in May 2009. Her former employer reported that her employment as a waitress and hostess was terminated that month because of "lack of concentration, rudeness, tardiness, kept having to retrain, angry outbursts." The employer also reported that the Veteran earned $24, 100 in the 12 months preceding the termination. Consistent with the employer's report, the Veteran indicated in her application for TDIU that she had worked for the same restaurant from March 2007 to May 2009, working 35 to 40 hours per week. In contrast to the employer's report she indicated that the most she had ever earned in one year was $12,000 in 2008. The only clinical evidence for the period prior to May 2009, consisted of the report of a VA examination conducted in April 2009. On the examination it was reported that the Veteran lived with her 10 year old son with whom she had a "good" relationship. She had no friends or involvement in community organizations. She was then employed as a waitress. It was indicated that the employment had been part time until several months ago. In the last month she had taken one month off from work. None of the examples of symptoms for the 100 percent rating was reported. The diagnosis was dysthymic disorder with a GAF of 50. Records from the Social Security Administration also show that the Veteran reported that she was employed prior to May 2009. This record shows that although the Veteran was given a GAF indicative of severe disability, her psychiatric condition did not result in total occupational and social impairment prior to May 2009. She was gainfully employed (i.e. she was earning more than the poverty rate for one person) and working full or slightly less than full time and she maintained a relationship with her son. A statement from the Veteran's mother dated in April 2008, suggests that while the Veteran was isolated from friends and family, she was apparently mainlining a relationship with her mother. The Veteran has not contended that she was unemployable prior to May 2009. Accordingly the overwhelming weight of the evidence is against a finding that the Veteran met the criteria for a rating in excess of 70 percent for her psychiatric disability prior to May 2009. The evidence also shows; however, that beginning in May 2009, the Veteran's psychiatric disability caused total occupational impairment. First, the record shows that she was fired from her employment due to psychiatric symptoms. In August 2009, a private therapist reported the results of an evaluation conducted in July 2009. She diagnosed a major depressive disorder, assigned a GAF of 35, and opined that the Veteran was permanently and totally disabled and unemployable. VA outpatient treatment records dated from July 2009 to September 2010, show that the Veteran was given GAFs of 40, except that in July 2009, a GAF of 65 was reported. The higher GAF was provided without the provider having the opportunity to fully evaluate the Veteran. At a VA examination in January 2010, the examiner opined that the Veteran did not have total social and occupational impairment, but reported that the Veteran had very little social contact, and could not work at a job requiring interpersonal function, but "might" be able to maintain a simple job without interpersonal contact. The examiner assigned a GAF of 48. The Veteran was granted Social Security Administration disability benefits in April 2010. The primary disability was affective disorders. Since May 2009, the Veteran has been mostly assigned GAFs indicative of an inability to work or have friends or social contacts. The only reported social contact has been with her dependent son, who she worries must take care of her. Although the VA examination suggested that the Veteran might have some residual occupational ability; but that aspect of the opinion was equivocal and it is difficult to envision employment that would require no interpersonal contact. In short the evidence is in favor of a finding that the Veteran's psychiatric disability results in symptoms that have most nearly approximated total social and occupational impairment since May 2009. Extraschedular Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation 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 as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, 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. Thun v. Peake, 22 Vet. App. 111 (2008). 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran has been granted the maximum rating, effective May 1, 2009. During the entire appeal period her disability has been manifested by social and occupational impairment. These symptoms are contemplated by the rating criteria. Hence, referral for consideration of an extraschedular rating is not warranted. TDIU VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown , 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Prior to May 1, 2009, the Veteran was gainfully employed; therefore, her service connected disability did not preclude gainful employment. For the period since May 1, 2009, the Veteran has been granted a 100 percent rating for her only service connected disability. . The Court has recognized that a 100-percent rating under the Schedule for Rating Disabilities means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period) See Locklear v. Shinseki, 24 Vet. App. 311, 314, footnote 2 (2011). The issue of entitlement to TDIU is therefore moot for the period beginning May 1, 2009. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 70 percent for psychiatric disability described as dysthymic disorder and insomnia (previously shown as depression and sleepiness) prior to May 1, 2009 is denied. Entitlement to an initial rating of 100 percent for psychiatric disability described as dysthymic disorder and insomnia (previously shown as depression and sleepiness) is granted, effective May 1, 2009. Entitlement to TDIU is denied. _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs