Citation Nr: 1311224	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  07-20 804A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial disability rating in excess of 50 percent for service-connected major depressive disorder (MDD).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel

INTRODUCTION

The Veteran served on active duty from January 1976 to June 1997.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that granted service connection for MDD and assigned a 50 percent rating. 

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2012.  A transcript of the hearing is associated with the claims file. 

In June 2012, the Board remanded the Veteran's claim for further development.  The requested action was taken and the case has been returned to the Board for adjudication.  


FINDING OF FACT

The Veteran's MDD is manifested by occupational and social impairment with reduced reliability and productivity due disturbances of mood and motivation, social withdrawal, decreased concentration, sleep disturbances, abnormal affect, impaired judgment, and difficulty maintaining relationships.  He has not, however, been shown to have occupational and social impairment with deficiencies in most areas.  


CONCLUSION OF LAW

The criteria for an initial disability rating greater than 50 percent for MDD have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

In initial rating claims such as the instant case, where entitlement to disability benefits has been granted and an initial rating has been assigned, the original claims have been more than substantiated, as they have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for entitlement to benefits has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

As noted above, the Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his increased rating claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2)  (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issue on appeal during the hearing and discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim.  The Board also notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) .

If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of an increased rating.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs) and VA medical records are in the file.  Private records have been associated with the Veteran's claims file, to the extent available.  Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. 

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).

The RO provided the Veteran appropriate VA examination most recently in July 2012.  The VA examination report is thorough and supported by the other treatment evidence of record.  The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria.  The examination report also discussed the impact of the disability on the Veteran's daily living.  Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the July 2012 examination report in this case is adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Given the July 2012 VA examination and report, attempts to obtain private treatment records dated from 2007, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its June 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this regard, the Board notes that the Veteran was sent a letter in June 2012 requesting that he provide a release to allow VA to retrieve any outstanding private treatment records from Dr. N.M., dated from 2007 to the present.  A follow up request was sent in July 2012.  The Veteran did not reply to either request, but submitted a February 2012 statement from Dr. N.M.  As such, the Board fulfilled its duty to attempt to retrieve these outstanding private treatment records.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria

Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  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 an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (2012).  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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 (2012).  

Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's MDD has been evaluated using Diagnostic Code 9434 of 38 C.F.R. § 4.130, which sets forth criteria for evaluating MDD using a general rating formula for mental disorders outlined in Diagnostic Code 9440.  Pertinent portions of the general rating formula for mental disorders are as follows:

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...........100 percent

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships..............................70 percent

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships......................50 percent

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation 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).....................30 percent 

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).  Id.  Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score.  The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

According to the DSM-IV, a GAF score between 41 and 50 is indicative of 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); a GAF score between 51 and 60 is indicative of 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 coworkers); a GAF between 61 and 70 is indicative of 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; a GAF between 71 to 80 is indicative that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work). 

Factual Background and Analysis

By way of background, the Veteran was originally awarded service connection for his MDD in an August 2006 rating decision.  He was assigned a 50 percent rating, effective in April 2006.  

The Veteran appealed the rating assigned and contends the rating does not accurately depict the severity of his current condition.  He argues that his MDD, anxiety, and insomnia impact his ability to work, perform academically, maintain social/familial relationships, make sound judgments because he is always irritable and borderline combative at times.  He maintains that he controls these feelings by isolating himself.  The Veteran's wife has also submitted a statement describing similar symptoms of the Veteran's MDD.  

Prior to filing his claim in April 2006, the Veteran was treated for pain disorder associated with psychological factors and general medical condition, mild major depressive disorder, and adjustment disorder with mixed anxiety and depressed mood in 2004.  

In a November 2005 VA treatment record (prior to the period on appeal), the Veteran was noted to have scored in the extreme range of depression on the Burns' Depression Checklist.  At that time, the Veteran reported no prior diagnosis of a mental health disorder or treatment.  He endorsed symptoms including feelings of sadness, worthlessness, hopelessness, guilt/shame, anhedonia, anergia, appetite disturbance, and sleep disturbance.  When he went in for treatment, he reported a lot of emotional stress within the last week because of a demotion at work and change of status.  He reported being depressed since that time.  Later that same month, he was diagnosed as having MDD, moderate and the Axis IV stressors were listed as "relationship stressors."  He was assigned a GAF score of 48, and reported that he had quit his job.

In a February 2006 VA treatment note, the Veteran reported a slight increase in depressive symptoms due to his sleep disturbance, but is mood had increased in the previous week.  It was noted that he continued to increase his social support and pleasant activities.  The Veteran denied suicidal ideation, and wished to continue group therapy.  The treating psychologist diagnosed the Veteran as having depression, not otherwise specified, and assigned a GAF of 65.  

In May 2006, the Veteran was afforded a fee-basis VA psychiatric examination, at which time he reported the onset of his depressive symptoms and insomnia since 2005.  He was prescribed Trazodone in 2005 and has being doing much better, but reported experiencing some good days and some bad days.  The Veteran endorsed feeling worthless due to being unable to be as physically active as before, and he is unable to sit for long periods of time.  The examiner described this as chronic pain.  The Veteran indicated that his mood is better, but he is easily irritable and tends to isolate because of it.  He has poor interest, appetite, and energy.  He endorsed feeling hopeless at times, but asserted that he has not given up yet.  The Veteran further endorsed anxiety and sleeping problems due to his concerns for activities he can no longer do.  He tends to lie in bed thinking of all the negatives and failures.  His anxiety symptoms are better because of his relaxation techniques and his sleep difficulties are better now that he is medicated.  He denied any suicidal ideation.  

The examiner indicated that the Veteran's symptoms of depression and sleep problems occur constantly and moderately impact his total daily functioning in relationships.  The examiner opined that the Veteran's anxiety also occurs constantly, but it only mildly impacts his daily functioning.  The examiner indicated that the Veteran's response to treatment has been good, but he still requires continuous treatment to control the ongoing symptoms.  He continues to undergo therapy as often as once per week, and the response has been good.  In his most recent job, the Veteran reported a fair relationship with his supervisor, but a good relationship with his coworkers.  

The examiner further noted that since the onset of his MDD, the Veteran experienced major changes in his daily activities, such as lack of motivation and interest.  Additionally, there have been social changes in the form of lack of interest in relationships, increased preference for being alone, and marital discord.  He indicated that he is currently unemployed and has been for the last year.  He left his job due to his medical condition.  

Mental status examination revealed that the Veteran's orientation was within normal limits, and his appearance, hygiene, and behavior were all appropriate.  The Veteran's mood and affect were both abnormal with depressed mood that occurs near continuously, but does not affect his ability to functional independently.  The examiner noted that the Veteran's depression fluctuates in severity, and he is generally less active and less interested in doing things when he's more depressed.  Communication, speech, and concentration were all within normal limits.  Panic attacks are absent, and the Veteran does not have suspiciousness, delusions, hallucinations, or obsessional rituals.  Thought processes, judgment, abstract thinking, and memory are all normal.  Suicidal and homicidal ideations are absent.  

Following review of the claims file and examination of the Veteran, the examiner diagnosed the Veteran as having MDD, recurrent, partial remission with anxiety and insomnia as symptoms of the depression.  He was assigned a GAF score of 62.  The examiner opined that the Veteran occasionally has some interference in performing activities of daily living because of depression, mild anxiety, and insomnia.  Further, he has difficulty establishing and maintaining effective work/school and social relationships because of irritable mood and lack of interest.  

In an August 2006 VA treatment record, the Veteran reported experiencing panic attacks 3 to 4 times weekly.  Despite is anxious mood, many of his other symptoms were not present.  The treating professional assigned a GAF of 55 for this timeframe.  

The Veteran was afforded another VA examination in May 2007, at which time the examiner noted that the Veteran continues to undergo private and VA treatment for his MDD.  The Veteran reported that his marriage is quite strained due to his MDD symptoms, and he isolates markedly because he is down on himself and feels worthless.  His sleep is poor and has panic attacks that occur fairly often.  He endorsed some suicidal ideation and at one point locked himself in a room.  The examiner indicated that the Veteran's symptoms vary, but he only gets relief from his symptoms for a day or two each month.  

Regarding social functioning, the examiner noted that the Veteran is most isolative, and has a lot of difficulties in social functioning.  The examiner indicated that the Veteran is not able to handle employment.  The Veteran reported that just last week, he suddenly quit his job.  He reported that his group therapy and medications have been somewhat helpful to him.  

Mental status examination revealed normal thought processes and communication, but he experiences difficulty keeping his thoughts organized and linear during times of more depression and anxiety.  The Veteran did not have any delusions or hallucinations, but feels like VA is out to "screw him."  The examiner indicated that although this has not reached a level of delusion, he is extremely suspicious.  The Veteran denied any current suicidal or homicidal thoughts, but had a history of them in the past.  The examiner found the Veteran's ability to maintain personal hygiene and activities of daily living is acceptable.  He was oriented in all spheres and had normal long term memory, but his short term is problematic especially because of decreased concentration and attention that accompany severe depression or anxiety.  The Veteran denied any obsessive or ritualistic behavior, and his speech patterns were normal.  

The Veteran further reported 5 to 6 panic attacks per week, and they are triggered at night when he is trying to sleep.  The examiner noted his depressed mood was fairly marked and he experiences suicidal ideation at least once a week.  The Veteran's impulse control was found to be adequate but problematic due to irritability and anger.  In addition, his motivation to accomplish tasks is decreased by his depression.  The Veteran reported sleeping on average 2 hours per night.  

Following examination of the Veteran, the examiner diagnosed him as having MDD, and assigned him a GAF of 55.  The examiner noted that a GAF of 55 reflects that symptoms are fairly serious, and are in the range between serious to moderate.  The examiner noted that this score suggests that the Veteran is quite isolative, avoids social contact, and is now unable to work.  He quit his job because of all the conflicts and problems there.  In addition, his marital stress has increased.  The examiner indicated that the Veteran is socially, interpersonally, and vocationally down with very severe intrusion of depression and anxiety that are both chronic and very severe.  The examiner further indicated that the Veteran continues to have difficulty despite extensive amounts of time in treatment, and he continues to have very serious problems and problems that appear to be worsening.  Finally, the examiner opined that the Veteran's MDD leads very substantially to occupational impairment and very substantial social impairment.  He noted that the Veteran is experiencing great difficulties in those areas.  

The Veteran was afforded another VA psychiatric examination in February 2010, at which time he reported some similar symptoms as in the previous VA examination.  He described his marital situation as "ok" with ups and downs.  He tends to isolate and avoid socializing and crowds.  He denied participating in activities with his young sons, and endorsed feeling tired all the time with poor interest.  He reported an impaired short-term memory, with fair concentration.  The Veteran additionally endorsed suicidal thoughts and irritability.  

Mental status examination revealed normal appearance, psychomotor activity, speech, affect, and attitude toward the examiner.  His mood was noted to be depressed, but he had no difficulties with attention, orientation, thought process, thought content, and judgment.  He denied delusions, hallucinations, or obsessive rituals, and has average intelligence.  He understands that he has a problem and endorsed frequent panic attacks when he drives and is fearful of heights.  The examiner indicated that the Veteran is able to maintain minimum personal hygiene and has no problems with his activities of daily living.  Memory testing was normal.  

Following mental status examination, the examiner continued the Veteran's MDD diagnosis and described it as recurrent and mild.  He assessed a GAF of 65.  He noted that the Veteran is unemployable due to multiple medical problems that are physical in nature.  The examiner noted that the Veteran continues to experience symptoms of depression, but "it certainly does not seem to be in the severe range."  The examiner further indicated that the Veteran is able to perform all life activities and his medical and psychiatric issues are stable overall.  The examiner opined that the Veteran's psychiatric symptoms do not impact his social or occupational functioning overall.  He noted that the Veteran's psychiatric symptoms are transient and mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  

Following the Board's June 2012 remand, the Veteran was afforded his most recent VA examination in July 2012.  The Veteran reported continued depression that is mostly controlled on Lexapro, but still has difficulty sleeping 1 to 3 times a week.  He endorsed associated anxiety and insomnia related to his depression.  He advised that his wife is supportive, but he continues to isolate himself.  He further indicated that he is unable to work due to his physical disabilities.  The Veteran indicated that his depression is controlled by medication, but he still experiences bouts of anxiety and sleeplessness once or twice weekly.  The examiner indicated that concentration, energy, and interest are unchanged since the 2010 examination.  The examiner found that the only symptoms the Veteran experiences related to his depression are depressed mood, anxiety, sleep disturbance, low interest in socializing, and low motivation (the last of which is also partially due to his physical limitations).  

The examiner summarized the Veteran's symptoms as causing occupational and social impairment due to mild or transient symptoms that decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or, his symptoms are controlled by medication.  The examiner indicated that the Veteran's depressed mood is controlled by mediation, and his low interest in socializing interferes with his ability to maintain social relationships.  He further opined that the Veteran's anxiety and insomnia do not impact his social or occupational functioning because he is not currently employed and he reports taking daily naps.  The Veteran was assigned a GAF of 60, based on the Veteran's mild symptoms including depressed mood, insomnia, and some difficulty in social relationships due to isolating.  The examiner opined that due solely to his psychiatric issues, he is generally functioning pretty well and has meaningful relationships with his wife and children.  

The Veteran submitted a letter from his private treating physician, dated in February 2012.  The private physician indicated that he has treated the Veteran's since April 2008 for MDD, anxiety, and insomnia.  He indicated that he sees the Veteran every two months for psychotherapy, and has prescribed the Veteran Lexapro for treatment.  The physician indicated that the Veteran appears to be stable on this medication and combined with the psychotherapy, it seems to be helping.  

The Veteran continues to undergo treatment for his psychiatric disabilities at the VA Medical Center and he also appears to continue private treatment.  

In this case, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor.  The Board concludes, however, that the symptoms and manifestations of his MDD as shown during the VA examinations and the course of outpatient treatment, as well as based on statements by the Veteran and his wife, do not demonstrate a degree of disability that warrants assignment of a rating greater than 50 percent.  See 38 C.F.R. § 4.7 (2012).  Furthermore, the symptoms and manifestations shown throughout the Veteran's treatment are generally consistent in terms of impact on social and occupational functioning throughout the pendency of the applicable appellate time period.  For this reason, further staged ratings are not applicable.  See Fenderson, 12 Vet. App. at 119.  

Initially, the Board acknowledges the assigned GAF scores during this period ranged from 55 to 65, which suggests mild to moderate symptoms.  That said, an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned.  The percentage rating is to be based on all the evidence that bears on occupational and social impairment.  38 C.F.R. § 4.126 (2012); VAOPGCPREC 10-95 (1995); 60 Fed. Reg. 43186 (1995).

In this case, the Veteran's manifestations have mainly included, depressed mood, anxiety, insomnia, isolation, irritability, panic attacks, lack of motivation, loss of interest, some memory problems, and episodes of suicidal ideation.  However, the Veteran did not display obsessional rituals which interfere with routine activities, exhibit illogical, obscure, or irrelevant speech, or exhibit neglect for personal appearance or hygiene.  The Board acknowledges that the Veteran's reported signs and symptoms included panic attacks and depression and that he is sometimes unable to completely function as a result of his symptoms.  The Board notes, however, that the Veteran's symptoms otherwise did not prevent him from functioning independently or, as will be discussed in greater detail below, otherwise result in total occupational and social impairment

As noted above, the Board acknowledges that a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria.  See Mauerhan, 16 Vet. App. at 442; however, as the Court held in Mauerhan, without the examples noted in the rating criteria differentiating a 50 percent rating from a 70 percent rating, evaluation of the psychiatric disability for rating purposes would be extremely ambiguous.  The Board is to consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  If the evidence demonstrates that a 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 should be assigned.  Id.  In this case, however, the Board concludes that the Veteran's MDD symptoms did not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as necessary to warrant a 70 percent rating.  Nor did the Veteran exhibit total occupational and social impairment as contemplated for a 100 percent rating prior.

With respect to the Veteran's occupational functioning and impairment, the Board observes he worked until November 2005, and has since retired.  Although there is evidence of record indicating that physical disorders are the main cause of his unemployment, the Veteran has reported that his psychiatric symptoms prevented him from pursuing other employment opportunities.  However, while the Veteran may have a significant degree of occupational impairment due to his MDD symptoms, the Board finds that the Veteran is not shown to have deficiencies in most areas as contemplated for a 70 percent rating or total occupational impairment as contemplated for a 100 percent rating.  In this regard, the Board notes that the 50 percent rating assigned for the entire timeframe on appeal (as well as the award of a TDIU, effective December 1, 2005) is recognition of significant industrial impairment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).

That said, as for the Veteran's social functioning and impairment, the Veteran clearly did retain the ability to socialize both in public and private settings.  He has recently described his relationship with his wife as supportive, but the medical history notes they have had their marital ups and downs.  Although the couple certainly experienced problems due to the Veteran's MDD symptoms, such problems are contemplated in the current 50 percent rating prior.  Moreover, although he may have limited his social interaction, the record demonstrates that the Veteran was able to function in a public setting and even had a good relationship with some previous coworkers.  As such, although the Veteran may have significant social impairment due to his MDD symptoms, the Board finds that based on the lay and medical evidence of record he did not have deficiencies in social functioning as contemplated for a 70 percent rating or total social impairment as contemplated for a 100 percent rating.

In summary, the Veteran did not have the degree of deficiencies in social and occupational functioning as contemplated for a 70 percent rating or total social and occupational impairment as contemplated for a 100 percent rating.  He certainly did have deficiencies in these areas, but the greater weight of evidence demonstrates that it was to a degree no more than contemplated by the 50 percent rating currently assigned.  Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he did not meet the requirements for an evaluation greater than the current 50 percent schedular rating.  Although the Veteran had some of the criteria for a 70 percent rating in different timeframes on appeal, see Mauerhan, 16 Vet. App. at 442, the Board concludes his overall level of disability did not exceed his current 50 percent rating at any time during the appeal period.  

The initial GAF scores, in this case, could support a higher rating if taken alone.  However, the actual reported symptoms and manifestations repeatedly noted in the record were commensurate with the degree of social and industrial impairment required for the assignment of the current 50 percent disability evaluation.  The Veteran's speech was not illogical, obscure or irrelevant.  He was not in a near-continuous state of panic or disorientation.  He did not experience hallucinations.  Although he did exhibit some concentration problems, his thought processes and communication were overall logical and coherent.  He did not exhibit inappropriate behavior.  His personal hygiene was at least minimally appropriate.  He had some social impairment, but he had an overall supportive relationship with his wife and did have a relationship with his youngest sons.  Although his socializing was self-limited, it is clear from the evidence of record that he did maintain a social relationship with multiple individuals in both an occupational and social setting.  Again, in determining that a rating in excess of 50 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 50 percent rating. 

The Board has considered the Veteran's claim and the lay and medical evidence, but concludes the preponderance of the evidence is against granting a higher rating for MDD, and thus, the benefit-of-the-doubt rule does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Additional Considerations

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (2012).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected MDD is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's MDD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Specifically, the Veteran reported multiple psychiatric symptoms, including anxiety, depression, isolation, sleep impairment, irritability, concentration problems, panic attacks, lack of motivation, loss of interest, and some memory problems.  The current 50 percent rating contemplates these and other psychiatric symptoms.  Thus, the Veteran's current schedular rating under Diagnostic Code 9434 is adequate to fully compensate him for his disability on appeal.  

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

Although the Veteran contends his MDD, in part, renders him unemployable, he is currently in receipt of a total disability based upon individual unemployability, effective December 2005.  Therefore, the TDIU issue is not on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting in a footnote that claims for increased evaluations and TDIU claims may be separately adjudicated).



ORDER

Entitlement to a rating in excess of 50 percent for MDD is denied.  




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs