Citation Nr: 1310889 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-22 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for depressive disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 6, 2012. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from February 1989 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Sale, North Carolina. The August 2008 rating decision denied, in pertinent part, entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine and entitlement to a TDIU. Even though the Veteran did not expressly appeal the TDIU denial, that issue was deemed to have been raised as a part of the degenerative disc disease and depressive disorder claims that were eventually appealed to the Board. The degenerative disc disease claim was denied in a June 2012 Board decision. That issue was not appealed and is thus no longer before the Board for consideration. The April 2009 rating decision found that clear and unmistakable error had been committed in a January 2006 rating decision that denied service connection for depressive disorder as secondary to service-connected back and sinus disabilities. The April 2009 rating decision granted service connection for depressive disorder and assigned a 30 percent rating, effective July 26, 2005. A notice of disagreement with the disability rating that was assigned in the April 2009 decision was received in May 2009, a statement of the case was issued in February 2010, and a substantive appeal was received in February 2010. In its June 2012 decision, the Board found, in pertinent part, that an initial rating in excess of 30 percent was not warranted for the Veteran's service-connected depressive disorder and that entitlement to a TDIU was not warranted. The appellant subsequently filed an appeal with the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a joint motion for remand in September 2012, requesting that the Court vacate the portions of the Board's June 2010 decision that denied a rating in excess of 30 percent for depressive disorder and denied a TDIU. In a September 2012 Order, the Court granted the joint motion, vacating the Board's June 2012 decision as it pertained to the Veteran's depressive disorder rating and TDIU and remanding the case to the Board for compliance with directives that were specified by the joint motion. The September 2012 Joint Motion for Remand directed the Board to provide an adequate analysis of the evidence of record, objecting in particular to the Board's failure to discuss certain evidence that it deemed to be favorable to the Veteran and its failure to adequately explain its reasons for discounting the probative value of the February 2011 VA examiner's opinion that the Veteran is unemployable due to his psychiatric disability. The joint motion also vacated the TDIU denial on the basis that that claim is inextricably intertwined with the vacated increased rating denial. In light of the assignment of a schedular 100 percent disability rating for the Veteran's service-connected depressive disorder, effective February 6, 2012, the Veteran's claim for a TDIU is rendered moot from February 6, 2012. However, the issue of entitlement to TDIU benefits prior to February 6, 2012, is addressed below. The record reflects that the Veteran submitted additional evidence to the Board accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a rating in excess of 30 percent and entitlement to a TDIU, both prior to February 6, 2012, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT From February 6, 2012, the Veteran's depressive disorder has been manifested by total occupational and social impairment due to such symptoms as persistent delusions or hallucinations, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). CONCLUSION OF LAW Beginning on February 6, 2012, the criteria of an evaluation of 100 percent for depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, or any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It appears in this case that all relevant evidence has been obtained and associated with the claims folder, and that records on file are sufficient to fully resolve the matter of entitlement to a rating in excess of 30 percent from February 6, 2012, in the Veteran's favor. Because the Veteran is being granted a 100 percent rating from February 6, 2012, and this rating is the maximum available rating for depressive disorder, any defect regarding VCAA must be considered harmless given the favorable action taken herein below. II. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. The Veteran has claimed entitlement to an initial rating in excess of 30 percent for his service-connected depressive disorder. This rating has been assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Depressive disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when there is 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). Id. A 50 percent evaluation is warranted when there is 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. Id. A 70 percent evaluation 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 work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation 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; 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. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Global Assessment of Functioning (GAF) scores reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). GAF scores from 61 to 70 indicate 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. GAF scores from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). GAF scores of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). GAF scores of 21 to 30 indicate behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). As will be discussed below, the Board finds that the Veteran is entitled to a 100 percent disability rating for his depressive disorder from February 6, 2012. The Board's granting of a 100 percent rating for depressive disorder, effective February 6, 2012, is based upon the findings of a VA medical record from on and after that date. The February 6 record notes that the Veteran endorsed having taken extra pain pills one month earlier to commit suicide, but he woke up. It was noted that he committed the same pill overdose with the same narcotic analgesics about two to three months prior to that. He reported feeling increasingly depressed and anhedonic and having suicidal thoughts for the past year. For at least the last two weeks, the Veteran had depressed mood. He was anhedonic, anergic, and irritable. He was seeing movement out of the periphery, hearing voices telling him to harm himself, and feeling that people in public were laughing at him. He had a shotgun at home, but the Veteran was not currently feeling suicidal, violent, or homicidal ideation. He felt safe at home and declined the offer of inpatient hospitalization. He was noted to be unemployed, unable to work due to anxiety and depression, and pursuing Social Security disability benefits. On examination, his appearance was well-kempt. Eye contact was normal. He was polite and engaged in the interview. Psychomotor activity was calm and non-fidgety. Speech was fluent and spontaneous. Mood was depressed. Affect was of constricted range, dysphoric, tense, anxious, non-guarded, and non-labile. His brows were furrowed but not quite omega sign, slightly odd but not frankly bizarre. Thought processes were linear and goal-directed. Thought content was reality based, and there were no delusional statements. There was no current suicidal, violent, or homicidal ideation, but he had experienced ongoing frequent passive and active suicidal ideation. He endorsed auditory and visual hallucinations. He was not responding to internal stimuli. Sensorium was alert. Cognition was grossly intact. Insight and judgment were good. The record notes that the Veteran "presents today severely depressed, recent [suicidal ideation] and [suicidal ideation] gesture v attempts, doubt but cannot rule-out secondary gain with [Social Security Disability]/[Service Connection]." He was assessed to be at chronic moderate risk to harm himself, but low risk to harm others. The main warning signs were anxiety, depression, and recent suicide gestures/attempts via pill overdose four weeks ago. Risks included past attempts, diagnoses, chronic musculoskeletal pain, gun possession, and limited compliance with treatment. Protectors included income, a place to live, desire to seek help, past response to medications, and contracting for safety. It was not thought that the Veteran was at acute risk of imminent harm, and he did not require involuntary commitment. The Veteran reported that he felt safe and preferred outpatient treatment with close follow-up. He would discuss with his wife about gun removal for added safety. A GAF score of 35 was assigned. Another February 2012 VA medical record notes that the Veteran's mood and sleep were much the same as before. He was still hearing vague voices inside his head, during times of pain, telling him to take more medication for the pain. He reported that his wife prods him to change his clothes and take care of his hygiene. He had some passive death ideation and some passive suicidal ideation of pill overdose. He did not have suicidal, violent, or homicidal ideation with a gun. The Veteran still felt depressed. He denied hopelessness. He denied active intent or plan of harm to himself or others. A GAF score of 35 was again noted. A March 2012 VA medical record also noted a GAF score of 35. At that time, he reported still being depressed. He had no suicidal, violent, or homicidal ideation at the moment, but he did have passive suicidal ideation the week before. His sleep was worse. He still had paranoia that sounded delusional and anxious. The Board finds that, resolving reasonable doubt in favor of the Veteran, the symptomatology that is noted since February 6, 2012, most closely approximates that of the 100 percent disability rating. In particular, the Board notes that the records reflect multiple recent suicide attempts (persistent danger of hurting self or others), delusions and audio hallucinations (persistent delusions or hallucinations), and that the Veteran's wife has to prod him to change his clothes and take care of his hygiene (intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene). The Veteran has also been consistently assigned a GAF score of 35 during this period, which indicates some impairment in reality testing or communication, or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood. The Board is of course aware that the Veteran does not meet all of the criteria for a 100 percent rating beginning on February 6, 2012. The record from this period does not demonstrate gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. However, although not all the criteria for a 100 percent schedular rating under the former Diagnostic Code 9434 have been met, the Court has held the symptoms listed at 38 C.F.R. § 4.130 are not an exclusive or exhaustive list of symptomatology which may be considered for a higher rating claim. See Mauerhan, supra. The Board has determined that the above evidence is probative to the question at issue. It has considered the notation in the February 2012 record suggesting concerns that the Veteran may have been exaggerating his symptoms for pecuniary gain. The Board notes, however, that the author of this record ultimately "doubt[ed]" that this was the Veteran's motivation. Furthermore, the medical record in which this observation was recorded ultimately assigned a GAF score of 35, which does not suggest a belief that the Veteran was malingering. The Board thus accepts that the medical evidence from on and after February 6, 2012, presents an accurate picture of the Veteran's psychiatric impairment at that time. In summary, since February 6, 2012, the Board finds that the Veteran has been shown to have a consistent history of severe symptoms, including multiple suicide attempts, auditory hallucinations, and intermittent inability to perform activities of daily living, and that his overall symptomatology has been shown to result in total occupational and social impairment as contemplated by the criteria for a 100 percent rating for Diagnostic Code 9434. For the reasons and bases set forth above, the Board finds that, resolving reasonable doubt in his favor, the Veteran's depressive disorder warrants a 100 percent disability rating from February 6, 2012. To this extent, the benefits sought on appeal are granted. ORDER Effective February 6, 2012, entitlement to a 100 percent rating for depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The Board finds that the claims of entitlement to a rating in excess of 30 percent prior to February 6, 2012, and entitlement to a TDIU prior to February 6, 2012, are remanded for further development. One of the February 2012 VA medical records that is noted above expressly states that the Veteran "is unemployed, unable to work due to anxiety and depression and is pursuing social security disability." VA has a duty to obtain records from the Social Security Administration (SSA) when it has actual notice that the Veteran was receiving SSA benefits. See Murincsak v. Derwinski, 2 Vet. App. 363, 370- 372 (1992). Because the record in this case reflects that the Veteran has been pursuing SSA disability benefits due specifically to his service-connected depressive disorder, the Board finds it necessary to remand this claim in order to obtain those records. The Board further finds it necessary to remand the TDIU claim because evidence from the Veteran's SSA disability benefits claim may be highly relevant to the Veteran's TDIU request. The Board also finds the claim of entitlement to a TDIU to be inextricably intertwined with the depressive disorder claim, because adjudication of the depressive disorder claim may affect the merits and outcome of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Veteran's claim of entitlement to service connection for depressive disorder must be fully developed and adjudicated by the RO before the Board can render a final decision regarding his TDIU claim. While these claims are on remand, the RO should obtain any outstanding records of the Veteran's ongoing VA medical treatment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain copies of all of the Veteran's outstanding VA medical records, and ensure that those copies are associated with the claims file. 2. Contact SSA and request any relevant records from that agency that pertain to any claim for benefits filed by the Veteran, to include copies of any examinations arranged by that agency, and any decisions rendered with respect to the Veteran. 3. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs