Citation Nr: 1311285 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-16 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 50 percent for major depression. ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from February 1999 to February 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In response to RO rating decisions, the Veteran submitted a notice of disagreement with the initial rating assigned for service-connected scars and the denial of a total rating based on individual unemployability due to service-connected disabilities (TDIU). Statements of the Case (SOC) were furnished regarding these issues, but, to date, the Veteran has not submitted a substantive appeal. The RO has completed its responsibility in the processing of these issues by sending the Veteran the SOCs. 38 U.S.C.A. 7105 (West 2002). If the Veteran wishes these issues to be considered by the Board, she must file a substantive appeal. The Board does not have jurisdiction unless a timely substantive appeal is filed. It would be inappropriate for the Board to assume that the veteran will appeal, or that he will appeal all issues or that the appeals would be timely or adequate. 38 C.F.R. §§ 20.202, 20.203, 20.302 (2012). It would be completely inappropriate for the Board to speculate as to the facts or arguments he might present in support of her claims. It is also possible for the veteran to submit additional evidence. 38 C.F.R. § 20.1304 (2012). It would be inappropriate for the Board to interfere with the appeal process by addressing these issues at this time. Hence the issues are not properly before the Board. Roy v. Brown, 5 Vet. App. 554 (1993). FINDING OF FACT Throughout the appeal, the Veteran's psychiatric disability has been manifested by a depressed mood, a blunted or flat affect suspiciousness and distrust of people, sleep disturbance, abnormalities of speech, reduced appetite, concentration ability described as only fair, and a low energy level, with Global Assessment of Functioning (GAF) scores between 45 and 55; which is productive of occupational and social impairment in most areas. CONCLUSION OF LAW The criteria for an initial rating of 70 percent for major depression have been met since the effective date of the award of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (Code) 5234 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess 19 Vet. App. at 490 A February 2010 SOC provided notice on the "downstream" issue of entitlement to an increased rating; while a July 2012 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including records utilized by the Social Security Administration (SSA) in a disability determination have been secured. The Veteran has also been afforded VA medical examinations in connection with the claim, most recently in October 2011. 38 C.F.R. § 3.159(c) (4) (2012). The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Veteran failed to report for the most recently scheduled VA compensation examination, scheduled for June 2012. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012). Rating Laws and Regulations Service connection for major depression was granted by the RO in a January 2008 rating decision. The 50 percent initial disability rating was awarded under the provisions of Code 9434 from the date of claim in February 2007. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In this case, the Board has considered the entire period of initial rating claim from February 2007 to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Rating Major Depression For major depression, 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 ideations; 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 worklike settings); 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; memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Code 9434. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. 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). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Id. On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. The U.S. Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 21 to 30 reflects that 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). A score of 31-40 is assigned where there is "[s]ome 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)." DIAGNOSTIC AND STASTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious 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 score of 51-60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers." Id. On psychiatric examination in December 2007, the Veteran's current symptoms included complaints of feeling sad, crying spells, social withdrawal, feeling helpless and worthless, decreased motivation and energy, and anhedonia. She described her symptoms as occurring constantly. She reported that she went to work and directly home. She had one friend and no hobbies. She went shopping on occasion and did some housework, but otherwise only watched television, had no social interaction and a quite constricted lifestyle. She reported having had trouble sleeping for the past three years. On mental status examination, the Veteran's orientation was within normal limits and appearance, hygiene and behavior were appropriate. Affect and mood were abnormal with flattened and constricted affect. She only smiled briefly one time while in the office. Communication was within normal limits. There was abnormal speech that occurred persistently, the examiner indicating that the Veteran spoke in a slow, soft voice that was flat and monotone. Speech was circumstantial, circumlocutory, stereotypical, illogical, obscure, irrelevant and pressured. It appeared that it was an effort for her to talk. Concentration was within normal limits and there were no panic attacks. There were signs of suspiciousness in that she did not trust people and had not been close to anyone for a long time. There was no delusional or hallucinatory history and no delusions or hallucinations were observed. There were no obsessional rituals. Thought processes were appropriate, judgement was no impaired, abstract thinking was normal, and memory was within normal limits. There were no suicidal or homicidal ideations. The diagnosis was major depression. The GAF score was listed as 55. VA outpatient treatment records show that the Veteran has been regularly evaluated at the mental hygiene clinic. In March 2009, mental status evaluation showed the Veteran to be alert and attentive, with cooperative and reasonable. Grooming was appropriate. Mood was depressed and affect was congruent with mood. There were no hallucinations or illusions and thought process was normal. There was no abnormal thought content, suicidal or violent ideation. Insight was limited and judgment was impaired. It was commented that she was neatly groomed, but burst into tears at one point and was very reticent with speech and low volume. The assessments were depression, rule out bulimia, and social anxiety disorder. The GAF score was listed as 45. The Veteran was to continue on her current medication. When last evaluated, in February 2011, the Veteran reported a somewhat reduced appetite, fair concentration ability, and a low energy level. She denied suicidal or homicidal ideations, hallucinations, delusions, nightmares, or flashbacks. She discussed having had purging episodes, although she was not specific as to frequency or timing. On mental status evaluation, the Veteran was alert and oriented in four spheres. She was well-groomed and casually dressed. She was calm and cooperative, with no abnormal movements. Her speech was soft and she described her mood as being depressed at least three to four times per week. Affect was blunted and thought processes were linear. Insight and judgment were fair. The assessments were major depressive disorder, recurrent; mood disorder, occasional purging; and social phobia. The GAF score was listed as 45. An examination was conducted by VA in October 2011. At that time, her current symptoms included loss of motivation, lack of interest, social isolation, and preferring to be by herself. She stated that she found it difficult to form relationships with men because she tended to lack trust. The severity of her symptoms was described as moderate. There were constant and continuous. She reported that she had not spoken to her mother in the past few months and had not spoken to her father in four years. She reported that she had had trouble sleeping for the past four years. She did not have a history of violent behavior or suicide attempts. She had been receiving treatment for her condition, taking the medication Wellbutrin once per day. The response to this medication was minimal. She had not received psychotherapy for her mental condition in the past year and had not been hospitalized for psychiatric reasons. On mental status evaluation, the Veteran's orientation was within normal limits. Appearance, hygiene, and behavior were appropriate. Affect and mood showed a flattened affect and a depressed mood. Communication was within normal limits. Speech was within normal limits and attention and/or focus were impaired. When having a concentration, her mind wandered off onto something else. There were no panic attacks, suspiciousness, delusions, or hallucinations observed or complained of. There was no obsessive compulsive behavior. Thought processes were appropriate. Judgment was not impaired and memory and abstract thinking were normal. There were no suicidal or homicidal ideations. The diagnosis was major depressive disorder. GAF score was 55. The examiner indicated that it was at least as likely as not that the Veteran's unemployment was secondary to the effects of her mental disorder, although her depressive symptoms were such that she would be able to work if she were able to obtain suitable employment. The examiner went on to state that the Veteran had difficulty establishing effective work and social relationships due to her trusting issues. The examiner believed that the Veteran's current disability caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally she was functioning satisfactorily with routine behavior, self-care, and normal conversation. This was supported by her symptoms of depressed mood and chronic sleep impairment. The Board finds that throughout the appeal, the Veteran's psychiatric disability has been manifested by a depressed mood and a blunted or flat affect. She has also exhibited suspiciousness and distrust in people, loss of motivation, lack of interest, and social isolation,. While this is not shown to have risen to such a level that it is considered delusional, it is a demonstration of significant disability. It has been noted that the Veteran speaks in a slow, soft voice, but that her communication ability was normal. Additional symptoms included a reduced appetite, concentration ability described as only fair, and a low energy level. The outpatient treatment records included a GAF score of 45, which indicates serious symptoms and serious impairment in social, occupational, or school functioning. It is important to note that the symptoms described in the VA outpatient treatment records were essentially the same as those found on the the VA compensation examinations where the GAF was found to be 55. Overall, the Board finds that the resulting psychiatric impairment causes deficiencies in most areas occupationally and socially. As these symptoms are shown to have continued from the Veteran's original compensation claim, a rating of 70 percent is warranted. The October 2011 examination report includes an opinion that her psychiatric disability likely caused her unemployability. At that time, the examiner elaborated that the Veteran's disability caused an intermittent inability to perform occupational tasks. Under these circumstances, the Board does not find that total occupational and social imapairment has been demonstrated. As noted, while the the examiner in October 2011 stated that the Veteran's psychiatric disability likely caused her unemployability, it was further elaborated that the disability was intermittent in nature. The intermittent nature of the disability does not support a finding of total disability. The Board has also considered whether an extraschedular evaluation is warranted for her major depression. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's major depression is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9434, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's major depression has manifested difficulty sleeping, depression, and difficulty concentrating. These symptoms are part of the schedular rating criteria. The level of occupational and social impairment are explicitly part of the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. As such, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on her daily life. In the absence of exceptional factors associated with major depression, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, while the Veteran has contended that her psychiatric disability has impacted her employment, a total rating based on individual unemployability (TDIU) was denied by an RO decision in April 2012. While the Veteran submitted a notice of disagreement with the denial, and a statement of the case was issued. She has not; however, submitted a substantive appeal. Therefore, the matter of entitlement to a TDIU rating is not before the Board. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased initial rating for major depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial rating of 70 percent, but no more, for major depression is allowed. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs