Citation Nr: 1306904 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-25 826 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to a higher initial rating for service-connected bipolar disorder (formerly characterized as a mood disorder), rated as 50 percent disabling prior to March 11, 2010. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from November 1995 to February 2004. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2007 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for mood disorder, effective November 2, 2006; but denied service connection for a right knee condition, claimed as right knee pain. In December 2007, the Veteran filed a notice of disagreement (NOD) with the assigned disability rating for mood disorder and the denial of service connection for a right knee condition. A statement of the case (SOC) was issued in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. In March 2010, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claims. The Veteran has since submitted additional evidence to the Board, waiving initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). In July 2010, the Board remanded the claims for service connection for a right knee condition and for a higher initial rating for service-connected psychiatric disability to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC issued a January 2012 rating decision granting service connection and assigning an initial 40 percent rating for right knee disability, effective November 2, 2006. That decision represents a full grant of that benefit sought on appeal with respect to the right knee. In the January 2012 rating decision ,the RO recharactertized the Veteran's mood disorder as bipolar disorder, and assigned a higher initial rating of 50 percent, effective November 2, 2006; as well as 100 percent disability rating, effective March 11, 2010. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for psychiatric disability, the Board characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO granted the maximum, 100 percent rating from March 11, 2010, inasmuch as higher ratings for this disability are available prior to that date, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating for the period prior to March 11, 2010 remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. From the November 2, 2006 effective date of the award of service connection through March 10, 2010, the Veteran's service-connected psychiatric disability was manifested primarily by mild insomnia, easily distracted, auditory hallucinations, and irritability; collectively, these symptoms are indicative of no more than occupational and social impairment with reduced reliability and productivity. 3. The schedular criteria are adequate to rate the disability under consideration at all pertinent points prior to March 11, 2010. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for bipolar disorder (formerly characterized as a mood disorder), prior to March 11, 2010, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.130, Diagnostic Codes 9432, 9435 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction ( in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. After the award of service connection, and the Veteran's disagreement with the initial rating assigned, the June 2009 Statement of the Case (SOC) set forth the criteria for higher ratings for psychiatric disabilities other than eating disorders (the timing and form of which suffices, in part, for Dingess/Hartman). Subsequently, an October 2010 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for a higher rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided the Veteran with general information pertaining to the assignment of VA's disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the October 2010 letter, and opportunity for the Veteran to respond, the January 2012 supplemental SOC (SSOC) reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of the May 2007, December 2010, and November 2011VA examinations. Also of record and considered in connection with the appeal is the transcript of the Veteran's March 2010 Board hearing, along with various written statements provided by the Veteran, and by his representative on his behalf. The Board also finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter remaining on appeal at this juncture. See Mayfield , 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the award of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The RO has already awarded staged ratings for the Veteran's service-connected psychiatric disability; however, as explained above, only the matter of a higher initial rating prior to March 11, 2010, remains before the Board. The Board will thus consider the propriety of the rating at this stage, as well whether any further staged rating during the relevant time frame is required. Given the change in the characterization of the Veteran's disability during the pendency of the appeal, the RO has assigned ratings for the Veteran's bipolar disorder (formerly, a mood disorder) under Diagnostic Codes 9432 and 9435.. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. A 50 percent rating is warranted for 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; and memory loss for names of close relatives, own occupation, or own name. For the period from the November 2, 2006 through May 10, 2010, the only pertinent medical evidence is the report of a VA examination conducted in May 2007. During that examination, the Veteran reported that he was not receiving any sort of mental health treatment, including medication or counseling. He reported that he loses track of things and starts to do projects but does not finish them; he indicated that he is easily distracted and worries over minor obstacles and conflicts. He does not fight but fusses a little. He reported mild insomnia and some auditory hallucinations but he did not have any manic episodes. He was currently married and had a child with an ex-fiancée that he had no contact with. Additionally, he was able to engage in a normal range and variety of activities of daily living without interruption of his typical daily routine and he enjoyed spending time with his uncle and shoots pool with his wife. During his interview, he presented somewhat off and was quite concrete, solemn, and brusque in his comments; however, his thought process was logical, coherent, and relevant and he was over all mentally intact and cooperative. He exhibited good social skills and seemed intelligent with well understood speech. He was well oriented to time, place, person, and situation. His reasoning, fund of general information, and verbal comprehension were all good; he also exhibited no psychomotor agitation or slowing. However, he had a flat and blunted affect. He reported poor concentration and poor short term memory. He denied being depressed but admitted the he was moody; he indicated that he had panic attacks, insomnia, appetite disturbance, anhednoia, and nightmares. He indicated that he had anger control problems, was combative in the past, and was distrustful of others. His problem behaviors were with irritability, combativeness, obsessive worry, and that he was easily distracted. The VA examiner stated that he was not convinced that the Veteran was truly psychotic and that the Veteran did not seem displeased with his attitude problems; there were also only minor interferences with his occupational and social endeavors. It was also noted that the Veteran had high average intelligence. The VA examiner stated that the Veteran did have a degree of occupational impairment but not enough to make him unemployable The aforementioned medical evidence reflects that, prior to March 11, 2010, the Veteran's mood disorder was manifested by flattened affect; problems with concentration; disturbances of mood; and anger problems. Collectively, these symptoms are indicative of no more than occupational and social impairment with reduced reliability and productivity-the level of occupational and social impairment contemplated in initial 50 percent disability rating assigned. There is no evidence indicating that, any point prior to March 11, 2010 the Veteran's overall symptomatology met the criteria for a rating in excess of 50 percent. In this regard, there is no evidence of psychiatric symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. For example, the Veteran's disability was not manifested by obsessional rituals which interfere with routine activities instead he reported that he was able to engage in a normal range and variety of activities of daily living without interruption of his typical daily routine. Additionally, there is no evidence that he had impaired impulse control (such as unprovoked irritability with periods of violence); instead, he reported that in the past he was combative but he also reported that he only fussed and did not fight. On examination, the Veteran's speech was noted to be brusque but his speech process was logical, coherent, and relevant; thus, there is no evidence of speech that was intermittently illogical, obscure, or irrelevant. While he reported that he worried over minor obstacles and conflicts and had some panic attacks there is no evidence that he had near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; moreover, it was noted that he was mentally intact and cooperative with good social skills. Additionally, the VA examiner noted that the Veteran had only minor interferences with his occupational and social endeavors; thus, there is no evidence of difficulty in adapting to stressful circumstances (including work or a work like setting). Finally, the Veteran was noted to have good social skills and he reported enjoying spending time fishing and playing pool with his uncle and wife; thus, there is no evidence of an inability to establish and maintain effective relationships. As the criteria for the next higher, 70 percent rating for psychiatric impairment are not met at any pertinent point prior to March 11, 2010, the Board finds that the criteria for the maximum, 100 percent rating are likewise not met. As indicated, there is no suggestion whatsoever of such symptoms as gross impairment of thought processes and communication, persistent delusions or hallucinations or grossly inappropriate behavior. Nor is there a persistent danger of the Veteran hurting himself or others, a disorientation to time or place, memory loss or inability to perform activities of daily living. In determining that the criteria for a rating in excess of 50 percent for the Veteran's service-connected psychiatric disability are not met, the Board has considered the applicable rating criteria not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability in question. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board further finds that the GAF score of 65 assigned prior to March 11, 2010, of 65, alone, provides no basis for assigning an initial rating in excess of 50 percent for the Veteran's psychiatric disability. According to DSM-IV, a GAF score ranging from 61 and 70 reflect some mild symptoms (e.g. depressed mood and mild insomnia), or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. As the assigned score is indicative of mild symptoms and occupational and social impairment, as indicated-less impairment than is contemplated by the assigned 50 percent rating-such score clearly provides no basis for the assignment of a rating greater than 50 percent. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any point from the November 2006 effective date of the award of service connection through March 10, 2011, the Veteran's service-connected psychiatric disability reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (cited in the June 2009 SOC). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) governing norms include marked interference with employment and frequent periods of hospitalizations). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id .at 116. In this case, the Board finds that schedular criteria are adequate to rate the Veteran's psychiatric disability at all times pertinent to the period under consideration. As discussed above, the Veteran's predominant subjective and objective psychiatric symptoms resulted in no more than occupational and social impairment with reduced reliability and productivity. A comparison between the Veteran's symptoms and the criteria of the rating schedule indicates that the rating criteria reasonably describe his level of impairment. Further, as noted, the rating schedule provides higher ratings based on evidence demonstrating more severe impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final matter, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran is still employed, and there is no indication that he is, in fact, rendered unemployable due to his service-connected psychiatric disability. As such, consideration of the Veteran's entitlement to TDIU due to such disability is not warranted. For all the foregoing reasons, there is no basis for staged rating of the service-connected psychiatric disability, pursuant to Fenderson, and the claim for an initial rating greater than 50 percent, prior to March 11, 2010, must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 50 percent for service-connected bipolar disorder (formerly characterized as a mood disorder), prior to March 11, 2010, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs