Citation Nr: 1305652 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 06-38 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to recognition of T. P. as the Veteran's child for Department of Veterans Affairs (VA) benefits purposes. 2. Entitlement to an increased disability evaluation for a major depressive disorder (MDD), rated 30 percent disabling, prior to November 20, 2006. 3. Entitlement to an increased disability evaluation for a MDD, rated 50 percent disabling, from November 20, 2006, to July 17, 2008. 4. Entitlement to a total disability evaluation, based on individual unemployability, due to service-connected disabilities (TDIU), prior to July 18, 2008. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from May 1969 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2006, February 2008 and May 2012 decisions of the Department of Veterans Affairs (VA) Phoenix, Arizona, Regional Office (RO). The May 2006 decision denied a rating in-excess of 30 percent for MDD. Prior to appellate review, an April 2010 RO decision assigned a 50 percent rating, from January 4, 2007, to July 18, 2008, and a 70 percent disability rating, after July 18, 2008. In April 2011, the Board denied the increased rating claim and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). An October 2011 Order of the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating and remanding only the Board's denial of a rating in excess of 30 percent for MMD, prior to January 4, 2007, and in excess of 50 percent, from January 4, 2007, to July 18, 2008. In March 2012, the Board again denied increased ratings for the respective periods and the Veteran, again, appealed the decision to the Court. In an October 2012 Order, the Court granted the parties' Joint Motion for Remand (JMR), which vacated the Board's March 2012 decision. Given the more favorable outcome detailed below, the Board has recharacterized the increased rating claims for MDD on the title page. The February 2008 RO administrative decision declined to recognize T. P. as the Veteran's child for VA benefits purposes. The May 2012 RO decision, granted a TDIU rating, effective July 18, 2008, and the Veteran filed a timely notice of disagreement with the assigned effective date. The issue of entitlement to a TDIU rating, prior to July 18, 2008, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In a September 7, 2010, statement, the Veteran withdrew the appeal seeking recognition of T. P. as his child for VA benefits purposes. 2. Prior to November 20, 2006, MDD has manifested no more than 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, mild memory loss (such as forgetting names, directions, recent events). 3. From November 20, 2006, to July 17, 2008, MDD was manifested by occupational and social impairment with deficiencies in most areas. 4. From November 20, 2006, to July 17, 2008, MDD was not manifested by 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 ability 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. CONCLUSIONS OF LAW 1. The criteria to withdraw the appeal seeking recognition of T. P. as the Veteran's child for VA benefits purposes have been met. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. Prior to November 20, 2006, the criteria for a disability rating in-excess of 30 percent for MDD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9437 (2012). 3. From November 20, 2006, to July 17, 2008, the criteria for a 70 percent disability rating for MDD are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.130, Diagnostic Code 9437 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Recognition as the Veteran's stepchild An appeal may be withdrawn by the Veteran or his representative as to any or all issues on appeal before the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204. The Veteran submitted a signed September 2010 statement withdrawing the appeal of the February 2008 administrative decision declining to recognize T. P. as his child for VA benefits purposes, eliminating any allegations of errors of fact or law. Dismissal is warranted. Duties to assist and notify In December 16, 2012 correspondence, the Veteran's attorney representative waived any VCAA notice errors. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determinations, and the records considered, were obtained in February 2006. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted and opinions obtained in December 2005, October 2009, September 2010 and October 2010; the Veteran has not argued, and the record does not reflect, that these examinations and opinions are inadequate for rating purposes because each provides sufficient evidence and opinion to make a fully informed assessment as to the nature, extent and severity of service-connected psychiatric condition. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). There is no indication any additional relevant evidence is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. MDD rating claim Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The May 2006 rating action continued the 30 percent disability rating for MDD, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Prior to Board review, an April 2010 rating action assigned a 50 percent disability rating, from January 4, 2007, to July 18, 2008, and a 70 percent rating, effective July 18, 2008. The October 2011 and October 2012 Court Orders did not disturb the April 2011 Board decision addressing entitlement to a rating in-excess of 70 percent, since July 18, 2008. Diagnostic Code 9437 provides that a 30 percent disability rating is provided for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted if the condition is productive of 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 disability rating contemplates 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. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A Global Assessment of Functioning (GAF) 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), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A higher GAF score reflects less impairment. The Veteran's Social Security Administration (SSA) records have been associated with the claims folder. On a May 2004 Social Security Report of Continuing Disability Interview form, the Veteran indicates that in May 1996 his hernia condition became disabling, resulting in his impaired employability as a truck driver. An October 2004 SSA disability examination reports the Veteran's account of experiencing the onset of hernia related surgical pain in 1996, his inability to utilize pain medications because "he was also operating as a commercial driver and this was incompatible with driving," and discontinuing employment as a commercial driver in approximately April 2001 or May 2001. SSA disability determinations, dated in June 1990 and November 2004, respectively found the Veteran to be disabled due to hernias and a right hip fracture. Multiple VA Requests for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) forms are of record. On an April 2006 form, the Veteran's former employer stated that he resigned as a truck driver in September 2004 and required no age or disability concessions. An October 2006 submission from his then current employer confirmed the Veteran's employment as a bartender/manager beginning in November 2004, and his need for physical impairment related accommodations. A December 2009 form indicates that the Veteran resigned as a bartender in June 2008. At his December 2005 VA examination, the Veteran characterized himself as a "happy guy," denied depressive symptoms, reported a "strong and supportive" relationship with his spouse and denied any violent or assaultive behaviors. The examiner noted his current depression screening consistent with such account, as well as September 2003, September 2004, and September 2005 depression screenings. On mental status examination, the Veteran was only noted as conveying agitation and frustration with "wrongs in his rating's (sic) process." Just as the Veteran had continually reported, the examiner provided an opinion that his sleep impairment, reduced social interaction, isolation and occupational impairment was attributable solely to the manifestations of a back disability. The Veteran's GAF score was 80. Records of the Veteran's VA psychiatric care are also of record. A November 2006 record indicates the Veteran presented with depression, isolative behavior, decreased interest in activities, sleep impairment and a 10-day history of headaches, related to multiple life stressors. In January 2007, the Veteran indicated that he was not suicidal and the nature and severity of his psychiatric symptoms was unchanged. A January 2008 fee-basis psychological examination extensively reports the Veteran' s psychiatric symptomatology, including sleep impairment, low energy and motivation, anhedonia (i.e., an inability to experience pleasure from activities usually found enjoyable), decreased libido, suicidal ideation and feelings of hopelessness and helplessness, and indicates the manifestations were minimally managed with medications. The fee-basis provider further conveyed that the Veteran's psychiatric condition was chronic and severe and partially the cause of an inability to sustain employment. The Veteran's GAF score was 50. The January 2012 private vocational assessment of vocational consultant E. Calandra, M.A., provides both current and retrospective information related to the Veteran's psychiatric condition. The assessment describes flashbacks, nightmares, and sleep impairment as manifestations of the Veteran's psychiatric condition and conveys an impression that medication, depression, impaired concentration and difficulties interacting with others resulted in the revocation of the Veteran's Commercial driver's license (CDL) in 2003. Vocational consultant Calandra also notes that the Veteran had "difficulty in dealing with typical job stressors [as a bar tender]...ultimately resulting in his being asked to leave." Vocational consultant Calandra further states: [The Veteran's] inability to continue to perform his occupation of thirty years as a truck driver illustrates the difficulty he had and would continue to have had in October 2005 in functioning in a competitive work environment. Virtually any structured work setting requires the ability to work effectively within the parameters of the physical demands of that job which the records as well as [the Veteran's] self-report show he was no longer able to do. While the medical records reviewed and cited in this report date back to at least 1988 it is clear [the Veteran] has been physically unable to work full time competitively since 2003. Then, reporting consideration of the Veteran's service-connected and nonservice-connected disabilities, vocational consultant Calandra opines that the Veteran's psychiatric disorder resulted in an inability to secure employment since at least October 2005. Merits The Veteran provided a competent account of psychiatric symptomatology, including a depressed mood and suicidal ideation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, prior to the Board's April 2011 denial of his service connection claim for a back disability, the record reflects his generally consistent and specific account that back related symptomatology (e.g., pain) caused his employment related impairment, sleep impairment, reduced social interaction and isolation. The evidence of record reflects the Veteran's continual report of experiencing sleep impairment, reduced social interaction and isolation related to his back, including solely for the purpose of seeking medical care, in furtherance of a service-connection claim for a back disability and to obtain SSA disability benefits. A December 2005 VA examiner also provided an opinion relating these symptoms to the Veteran's back symptoms. In a September 2010 statement the Veteran stated: "I have lower back [and] neck pain and because of it I had to give up my job," mentioning no psychiatric symptoms or manifestations. A May 2004 Social Security Report of Continuing Disability Interview form, a December 2005 VA examination report and an October 2006 SSA disability examination report also reflect his competent account of employment related to impairment due to hernia and/or back manifestations (e.g., pain) and do not even suggest psychiatric manifestations cause such impairment. April 2006, October 2009, and December 2009 VA Forms 21-4192 also reflect the independent report of former employers that the Veteran resigned from his job; they do not indicate that psychiatric symptoms resulted in any inability to perform corresponding job functions. The Board finds the most probative evidence regarding the nature, extent and severity of the Veteran's psychiatric condition and its impact on his employability to be his statements made prior to the April 2011 denial of a back disability service connection claim, as well as those made for the purpose of seeking treatment and care. These statements are generally consistent with the objective lay and medical evidence of record, lending further credibility to these statements. It is not until November 20, 2006, that the evidence of record tends to generally corroborate any account of employment related impairment, sleep impairment, reduced social interaction and isolation due to the service-connected psychiatric disability symptomatology, and the Veteran's subsequent statements relating psychiatric symptomatology prior to this date are simply not credible and of no probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to). Prior to November 20, 2006 The medical evidence confirms that the Veteran's psychiatric condition resulted in agitation and frustration; however, the record does not reflect symptoms such as speech, memory, thought, impulse control impairment, hallucinations, delusions or ritualistic behaviors. The December 2005 VA examination suggests, at best, that the Veteran's condition resulted in minimal anxiety, depression and concentration impairment. Moreover, the Veteran affirmed a "strong and supportive" relationship with his spouse and consistently denied suicidal or homicidal ideation. The evidence is also consistent with the Veteran's December 2005 VA examination GAF score of 80. There is evidence of sleep impairment, reduced social interaction, isolation and occupational impairment, but these symptoms are not properly attributed to the service-connected psychiatric condition. The December 2005 VA examiner specifically attributed these manifestations to a nonservice-connected back condition, as did the Veteran on numerous occasions. The January 2012 private vocational assessment provides a retrospective assessment to the contrary but this assessment is of significantly limited probative value because it is based on incomplete and inaccurate information provided by the Veteran. Specifically, the assessment relies, almost entirely, on a telephone interview with the Veteran after November 20, 2006, in which the Veteran provided a history which the Board has found to be inconsistent with the evidence of record, not credible, and of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Coburn v. Nicholson, 19 Vet. App. 427 (2006). Additionally, the January 2012 private vocational assessment does not provide a cogent rationale for its conclusions and is internally inconsistent. To cite but one example, the assessment first notes that the Veteran "has been physically unable to work full time competitively since 2003" but subsequently relates the inability to work to psychiatric manifestations. The preponderance of the evidence indicates that, prior to November 20, 2006, the Veteran's psychiatric symptoms manifested in no more than slight social and occupational impairment and his disability picture most closely approximated the criteria contemplated by, at most, a 30 percent disability evaluation. From November 20, 2006, to July 17, 2008 VA treatment records, dated in November 2006 and January 2007, and the January 2008 private psychological evaluation documented depression of such a severity and duration that the Veteran's ability to function appropriately and effectively was to some extent impaired. The January 2012 private vocational assessment also provides evidence suggestive of at least arguable manifestations that included irritability with others and unprovoked outbursts of anger. The January 2008 private psychological evaluation and January 2012 private vocational assessment also confirm that the Veteran's psychiatric condition resulted in suicidal ideation and a difficulty adapting to stressful circumstances, including in an employment setting. The evidence indicates that the Veteran's psychiatric condition was likely productive of at most moderate concentration and memory impairment, which is generally consistent with the GAF score of 50 recorded in the January 2008 private psychological evaluation. In light of the aforementioned facts and all evidence of record, the Board finds that the Veteran's MDD symptomatology most closely approximated a 70 percent disability rating, from November 20, 2006, to July 17, 2008. Nonetheless, the evidence shows that the Veteran is not entitled to a 100 percent disability rating at any time from November 20, 2006, to July 17, 2008. The Veteran is consistently shown to be oriented in all spheres and there is no demonstration of grossly inappropriate behavior. Although there is evidence of difficulty interacting with others and successfully performing in a structured setting, the evidence also reflects his consistent ability to maintain self-care and his marital relationship. While the Veteran experiences flashbacks and nightmares, the record does not suggest such symptoms are persistent in nature or are considered by medical professionals to be classified as delusions of hallucinations. While there is evidence of occupation and social impairment, there is no evidence of total social and/or occupational relationship impairment, as the Veteran maintains relationships with his family. The preponderance of the evidence is against the assignment of a rating in excess of 30 percent, prior to November 20, 2006 for service-connected MDD. From November 20, 2006, to July 17, 2008, the criteria for a 70 percent rating for MDD are established and an increase to 70 percent is warranted. Extraschedular Considerations The Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for extraschedular consideration. The Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. As discussed above, the rating criteria reasonably describe the disability level and symptomatology of the Veteran's MDD disability. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER The appeal seeking recognition of T. P. as the Veteran's child for VA benefits purposes is dismissed. Prior to November 20, 2006, a rating in excess of 30 percent for MDD is denied. From November 20, 2006, to July 17, 2008, a 70 percent rating for MDD, and no more, is granted. REMAND Following the March 2012 Board remand, a May 2012 rating decision granted the Veteran a TDIU, effective July 18, 2008. In a December 2012 statement, the Veteran's attorney expressed disagreement with the effective date assigned. The board accepts the submission as a timely notice of disagreement. See 38 C.F.R. § 20.201 (2012). The RO has not issued a Statement of the Case (SOC) with respect to this matter and the Veteran and his attorney must be provided an SOC on remand. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) Accordingly, the case is REMANDED for the following action: Issue the Veteran and his attorney an SOC with respect to his claim for an effective date prior to July 18, 2008, for a TDIU, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on this issue. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs