Citation Nr: 1311876 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-49 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for depressive disorder, currently evaluated as 50 percent disabling. 2. Entitlement to an increased rating for sinusitis, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from December 1992 to November 1998. These matters come before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted entitlement to a 50 percent rating for a depressive disorder, and denied entitlement to an increased rating for sinusitis. The Veteran timely appealed. The Veteran indicates that she wishes to represent herself in this appeal. FINDINGS OF FACT 1. Symptoms of depressive disorder have more nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. Symptoms of sinusitis have not more nearly approximated three or more incapacitating episodes requiring prolonged (four to six weeks) of antibiotic treatment per year or more than six non-incapacitating episodes per year. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for a rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6510 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in the December 2010 statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording the Veteran October 2009 VA examinations to address the severity of her depression and sinusitis. For the reasons stated below, those examinations were adequate. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis Legal Principles Applicable to Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, uniform 70 and 10 percent ratings are warranted for a depressive disorder and sinusitis, respectively, during the entire appellate term. Depressive Disorder The Veteran's depressive disorder is rated under under 38 C.F.R. § 4.130, Diagnostic Code 9434. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. The Veteran's depressive disorder is currently rated 50 percent disabling under the general rating formula, which contemplates for such a rating 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 effective work and social relationships. A 70 percent rating is warranted where 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 inability to establish and maintain effective relationships. The maximum schedular 100 percent rating for a psychiatric disability 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). 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 criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. One factor in evaluating psychiatric disorders is the Global Assessment of Functioning scale. The scale reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A global assessment of functioning score in between 41 and 50 indicates 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 score in between 51 and 60 indicates 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 peer or coworkers). In this case, the overall level of impairment as indicated by the Veteran's symptoms and the assigned global assessment of functioning scores reflect that a 70 percent rating is warranted. The October 2009 VA examiner was given categories labeled A through D corresponding to the impairment indicated by the rating criteria and indicated that the Veteran fell into category B, i.e., there was no evidence of total occupational and social impairment, but there were signs and symptoms which resulted in deficiencies in the areas of judgment, thinking, family relations, work, mood, or school. The examiner explained the selection by noting that the Veteran's recurrent major depression was affecting her mood, thinking, work, and socials (family, friends). The examiner opined, however, that with appropriate psychiatric medications and cooperation, the outcome was favorable for her to find work suitable to her qualifications, if that work was available. The examiner assigned a global assessment of functioning score of 45, indicating serious symptoms or any serious impairment in social or occupational functioning. The examiner noted that the appellant reported mood swings, isolation, irritability, staying in bed most of the time, insomnia, disorganized thinking, paranoid ideation, seeing things in the hallway that are not there, crying spells, and low motivation, with moments of feeling and no grandiose illusions. VA treatment notes indicated similar overall level of impairment, global assessment of functioning scores, and symptoms. For example, in March and May 2010 VA treatment notes, a VA psychiatrist (apparently the Veteran's treating psychiatrist) noted that the appellant had a history of suicide attempts. The psychiatrist noted that she was likely at some risk of harm to herself or others due to impulsivity, binge alcohol use, living alone, and loss of job. Significantly, the appellant specifically denied suicidal ideation. The psychiatrist assigned a global assessment of functioning score of 48 in March 2010 and 50 in May 2010. A July 2010 VA mental health treatment note indicated that the Veteran had ended relationships due to feeling uncomfortable with how she looked, in particular her weight. In the June 2010 notice of disagreement, the Veteran argued that the global assessment of functioning scores between 41 and 50 indicating serious symptoms or serious impairment warranted a higher rating and cited a Board decision in support of this argument. The Board notes that previously issued Board decisions are not binding as to subsequently decided cases. Each case presented to the Board must be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. C.F.R. § 20.1303 (2012). Moreover, global assessment of functioning scores are but one factor in determining the level of severity of a psychiatric disorder and are not dispositive as to the level of severity. The Board agrees, however, with the Veteran's contention that the severity of her depressive disorder is greater than that indicated by the 50 percent rating. The overall level of impairment indicated by both the October 2009 VA examiner and the VA psychiatrist in March and May 2010, both through the global assessment of functioning scores assigned and their comments, as well as the severity of the symptoms indicated by the other evidence of record discussed above, reflect that the Veteran had deficiencies in most areas and was unable to establish and maintain effective relationships. Given that the preponderance of the evidence reflects that the impairment caused by the Veteran's depressive disorder more nearly approximate occupational and social impairment with deficiencies in most areas, a 70 percent rating is warranted. The Veteran is not, however, entitled to a higher, 100 percent rating, because the symptoms of her depressive disorder did not more nearly approximate total occupational and social impairment. Although the Veteran reported seeing things in the hallway that were not there, she did not indicate and the VA examiner and psychiatrist did not find, that she had persistent delusions or hallucinations. Similarly, although the Veteran had a history of suicide attempts, and was likely at "some risk" of harm to herself or others, she denied suicidal ideation and there was no evidence that there was a persistent danger of hurting herself or others. There also was no evidence that the appellant suffered from a gross impairment in thought processes, grossly inappropriate behavior, intermittent inability to perform activities of daily living (including maintenance of personal hygiene), disorientation to time or place, or memory loss for names of close relatives or her own occupation or name. Rather, at her October 2009 VA examination and in VA treatment notes, the Veteran was noted to be appropriately groomed, oriented, and had less severe thought impairment and memory loss than that indicated by the criteria for a 100 percent rating. More significantly, the October 2009 VA examiner specifically indicated that the Veteran did not fall into the category of total occupational and social impairment due to mental disorder signs and symptoms. In addition, an August 2006 VA treatment note indicated that the Veteran had a new job as a mortgage loan officer and was pleased with this, and the October 2009 VA examiner indicated that the Veteran was unemployed because the company where she worked had shut down in April 2009. The examiner also noted that the Veteran did not contend that her unemployment was due to the effects of her depressive disorder. As this evidence reflects that neither the Veteran's symptoms nor her overall level of impairment more nearly approximated total social and occupational impairment, a 100 percent rating is not warranted for her depressive disorder. Moreover, as the Veteran did not indicate that her depressive disorder caused her unemployability, the issue of entitlement to a total disability rating based on individual unemployability has not been raised in connection with this increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's depressive disorder have most nearly approximated the criteria for a 70 percent rating, but no higher, throughout the appeal period. Sinusitis Sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Codes 6510, applicable to chronic parasinusitis or sinusitis. All types of sinusitis are rated under the general rating formula for sinusitis. Under the general rating formula, a 10 percent rating is warranted when there are one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is warranted for three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non- incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A Note to the general rating formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. A 30 percent rating is not warranted in this case because the Veteran has not had the number of incapacitating or non-incapacitating episodes that would warrant such a rating. The private and VA treatment notes and the October 2009 VA examination al indicate that the Veteran's symptoms fall within the one or two incapacitating episodes per year in the criteria for a 10 percent rating. The Veteran specifically indicated in October 2009 that since in service surgery she had experienced one to two severe episodes per year, with the last severe episode being in March to April 2009, as indicated in the Nextcare records that are part of the claims file. This required her use of an injectable antibiotic on several visits and oral antibiotic, inhalers, and steroids to resolve the sinusitis over a 6 week period. The response to treatment was fair and side effects were stomach irritation. The Veteran indicated that there was interference with breathing through the nose which was worse during severe episodes but present all of the time, purulent discharge, and speech impairment with her voice becoming horse. The Veteran also indicated that she could not eat properly and had severe fatigue during episodes. All of these symptoms were present during flare-ups several times per year. Consistent with the Veteran's statements during the examination, the examiner specifically indicated that the number of incapacitating episodes per year, defined in accordance with the Note to the general rating formula, was "usually once or twice per year," and he left blank the space for the number of non-incapacitating episodes. The above evidence reflects that the Veteran has had one to two incapacitating episodes per year during the appeal period. The evidence does not indicate that she had either three or more such episodes or more than six incapacitating episodes. The Veteran indicated that she had flare-ups with symptoms "several times per year," but neither she nor the VA examiner indicated that this reference denoted more than or even a number more early approximating six such episodes. As both the Veteran and the VA examiner have had opportunities to indicate the amount of non-incapacitating episodes with greater specificity than "several," and several would not normally be used to denote approximately 6 or more than 6, the Board finds that the evidence reflects that the Veteran's symptoms more nearly approximated the three to six non-incapacitating episodes warranting a 10 percent rating rather than the more than 6 incapacitating episodes required for a 30 percent rating under the general rating formula. In addition, the Veteran would not be entitled to a rating higher than 10 percent under any other potentially applicable diagnostic code. The VA examiner indicated that there were no nasal polyps, no atrophy, and no scarring of the nasal nares. There was no obstruction of one or both nostrils, no septal deviation, tissue loss, scarring, or deformity of the nose. There was no current acute sinusitis, disease of the soft palate, no disease of the larynx, and no disease of the pharynx. There was mild injection and swelling of the internal nares, with the throat and ears within normal limits. Additionally, there was mild injection of nasal mucosa from chronic inflammation, but these symptoms do not warrant ratings higher than 10 percent under any respiratory system diagnostic codes. While the Veteran's sinusitis impacted her employment, she did not claim and the evidence does not reflect, that it rendered her unemployable. Hence, the issue of entitlement to a total disability rating based on individual unemployability has not been raised in connection with this claim. Rice, 22 Vet. App. at 453. In her June 2010 notice of disagreement, the Veteran argued that the 10 percent rating did not consider her constant headaches and the effects of the treating medication. The Board notes, however, that the Veteran's headaches are specifically accounted for in the 10 percent rating, the criteria of which includes three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge. In addition, neither the Veteran, nor any VA examiner, nor any private or VA health care provider who prepared relevant treatment notes have indicated that there were any specific symptoms due to medication taken for sinusitis that would warrant a higher rating under any other potentially applicable diagnostic code. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's sinusitis has not more nearly approximated the criteria for a 30 percent rating under the general rating formula or any other potentially applicable diagnostic code at any time during the appeal period. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms due to the Veteran's depressive disorder are fully contemplated by the applicable rating criteria. With regard to depressive disorder, the symptoms are fully contemplated by the applicable rating criteria. As shown above, the criteria include both the symptoms listed and the overall level of impairment. The Board has been able to determine the appropriate rating based on the overall level of impairment, which includes all of the symptoms and their effect on social and occupational impairment caused by the Veteran's depressive disorder. As to sinusitis, the Veteran has indicated that she experiences symptoms not contemplated by the applicable rating criteria, such as fatigue. As to the second inquiry, however, the evidence does not reflect that the sinusitis has caused marked interference with employment or frequent hospitalization. Although the October 2009 VA psychiatric examination report indicated the Veteran was unemployed, the October 2009 sinusitis examination report indicated that the Veteran's usual occupation was bank account representative and she had missed two weeks in the past month due to the sinusitis. Other general occupational effects were indicated as swelling in the facial area preventing her from meeting with customers. Surgical removal of benign granuloma was noted in September 2009. While the Veteran's sinusitis has impacted her employment and she has been hospitalized, none of the above evidence reflects a marked interference with employment or frequent hospitalization. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified 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"). Referral for consideration of an extraschedular rating for sinusitis is therefore not warranted. 38 C.F.R. § 3.321(b)(1). Conclusion For the foregoing reasons, the preponderance of the evidence reflects that a rating of 70 percent, but no higher, is warranted for depressive disorder; and a rating higher than 10 percent is not warranted for sinusitis. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to a 70 percent rating, but no higher, for depressive disorder is granted subject to controlling regulations governing the payment of monetary awards. Entitlement to an increased rating for sinusitis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs