Citation Nr: 1314602 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-41 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for Major depressive disorder, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active military service from September 1974 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Atlanta (Decatur), Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2012 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Evidence pertinent to the matter on appeal was received subsequent to the last RO adjudication, the October 2009 statement of the case. In March 2013 correspondence the Veteran, through his representative, has waived initial AOJ consideration of this evidence. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the April 2007 RO decision denied entitlement to a TDIU. The Veteran filed a notice of disagreement with regard to the TDIU issue, and a statement of the case was issued in October 2009. The Veteran appeared to indicate on his VA Form 9 that he was only appealing the depressive disorder increased rating issue. Neither the Veteran nor his representative have indicated (for example, at the July 2012 Board hearing or in any of the Veteran's representative's written argument) that the issue of entitlement to a TDIU is on appeal and as such it is not before the Board at this time. FINDING OF FACT Throughout the rating period on appeal, the Veteran's depression was manifested by an abnormal affect, impaired impulse control, disturbances of motivation and mood, irritability, and difficulty in establishing and maintaining effective social relationships productive of occupational and social impairment comparable to no more than reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating of 50 percent, but no higher, for Major depressive disorder, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in February 2006, March 2006, and May 2008 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. 38 U.S.C. § 5103(a). The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected disability has on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As complete VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. While at his July 2012 Board hearing the Veteran indicated that he was in receipt of Social Security Administration (SSA) benefits, the Veteran further indicated that those records did not pertain to the disability on appeal, and such records do not need to be obtained. The Veteran's representative stated that he would look at the records and submit them if he found that they were relevant to the Veteran's claim; no such records have been submitted. The Veteran has undergone VA examinations that addressed the medical matters presented on the merits by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations described the Veteran's disability on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability. In short, the Board finds that VA's duty to assist in obtaining a VA examination has been met. During the July 2012 Board hearing, in order to assist the Veteran, the undersigned asked the Veteran questions concerning any recent evidence or examinations that may have been undertaken but that were not yet associated with claims file. The Veteran was informed that the record would be held open 60 days in an effort to allow the Veteran to submit additional evidence in support of his claim. The Veteran was also specifically informed of the criteria necessary to obtain higher evaluations for his depression. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Staged ratings are appropriate for increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. 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 of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for the Veteran's depression was granted in January 2006. The Veteran's claim for an increased rating for his service-connected depression was received on April 27, 2006. Diagnostic Code 9434 addresses Major depressive disorder. Under that code, a 50 percent rating is appropriate when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating for Major depressive disorder is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating for Major depressive disorder is provided 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. §§ 4.125-4.130. The above symptoms 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, 443 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect his level of occupational or social impairment. Id. at 443; 38 C.F.R. § 4.126. A Global Assessment of Functioning (GAF) rating 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 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994)). GAF scores ranging from 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores from 51 to 60 are 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 co-workers). GAF scores from 41 to 50 reflect 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). Scores from 31 to 40 indicate 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). 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 VA disability rating assigned. See 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (Mar. 31, 1995). It should be noted that use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, also is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a percentage disability rating. 38 C.F.R. §§ 4.2, 4.6, 4.126. At the July 2012 Board hearing it was noted that the Veteran had a recent psychiatric examination with a GAF of 55. The Veteran essentially stated that his depression had been instrumental in causing his marriage of nine months to end in divorce. He also stated that he had few friends and did not socialize. The Veteran indicated that he was unable to work and further stated that he was receiving SSA benefits for disability other than his depression. The evidence for this time period, including VA examinations dated in January 2007 and August 2009. At his January 2007 VA examination the Veteran indicated that he had sleep difficulties, a decrease in activity, anger problems, and tiredness. He indicated that he had not worked for the prior 7 years due to a back injury, and he further indicated that he socialized only with his sister. Examination revealed an abnormal affect and mood with impaired impulse control, unprovoked irritability, and periods of violence that affected motivation resulting in no interest in people or activities. Panic attacks occurred more than once a week, with speech and concentration being normal. There were no hallucinations or delusions present on examination, and while there were obsessional rituals present, they were not severe enough to interfere with routine activities. Memory was within normal limits, and judgment was not impaired and thought processes were appropriate. The diagnosis was adjustment disorder with depressed mood, and the GAF was 55. The examiner noted that the Veteran had difficulty establishing and maintaining effective work and social relationships but was not a threat to himself or others. At the August 2009 VA examination the Veteran indicated that he was sad, angry, and upset. He reported sleep difficulties, indicated that he had few friends, and would spend most of his time watching television. He denied a past history of suicide attempts or plans, although he sometimes wished that he was dead. The Veteran's medications included Fosinopril, Zocor, Trazodone, Geoden, and Celexa. He stated that he had been going to group therapy once a week for the prior two years. The examiner stated that the Veteran was not a reliable historian. His grooming and personal hygiene were poor, and his clothes were not clean and he was somewhat disheveled. His mood was anxious and his affect was appropriate and not depressed. The Veteran had impaired impulse control and would become angry easily. The Veteran's communication skills were normal, and there was no illogical or obscured speech or thinking. Concentration was aroused and sustained, and the examiner indicated that the Veteran had no panic attacks. There were no delusions, hallucinations, or suicidal or homicidal thoughts, and thought processes appeared normal. His memory was intact for recent events but was impaired for past events, "which could be" because of alcohol. Diagnoses included Major depressive disorder, dysthymia, and adjustment disorder with anxious and depressed mood. The GAF was 65. The examiner stated that the Veteran's primary diagnosis was alcohol abuse, and characterized his depression, anxiety, and memory loss as mild. VA treatment records reveal that the Veteran participated in group therapy and individual counseling in an effort to treat his psychiatric disability. In a February 2008 VA record the Veteran stated that he had suicidal thoughts four months prior but denied any such thoughts currently. An August 2008 VA record noted that the Veteran indicated that the had had occasional visual and audio hallucinations; that same record noted that there were no objective signs of hallucinations. In a December 2008 treatment record the Veteran noted that he would withdraw from people and would often say the wrong things that would lead to arguments; he indicated that he got some help form being in a church group. In an October 2009 treatment record the Veteran noted that his medications were helping and that his mood was improving. In December 2009 the Veteran complained of anxiety, insomnia, and hallucinations; examination revealed a flat affect, intact judgment and insight, and no hallucinations. In a June 2010 VA record the Veteran complained of some audio hallucinations and insomnia; examination revealed logical thinking, no perceptual distortions, and normal thought content with fair insight. In an October 2010 VA record the Veteran complained of feeling uncomfortable in crowds and reported some ongoing audio hallucinations; examination revealed an alert sensorium and a normal mental status examination. Multiple suicide risk assessments reveal that the Veteran denied that he had plans to kill himself. The Veteran's VA treatment records have noted GAF scores of primarily 55. Private treatment records dated from November 2004 to June 2008 reflect that the Veteran complained of sleep problems, isolation, guilt, sadness, and nightmares about the Vietnam War and the "Germany War." Findings such as sadness, anxiousness, irritability, soft speech, disorganized and ruminative cognition, excitability, hostile behavior were noted. The diagnoses included PTSD, and the GAF scores tended to be 60, although a November 2004, February 2007, and March 2007 record noted a GAF of 50. Before undertaking analysis, it is notable that the Veteran is service-connected for Major depressive disorder but not for such disorders as anxiety, adjustment disorder, alcohol abuse, and PTSD, which also have been diagnosed. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board shall consider all psychiatric symptomatology to be attributable to depression. Doing so results in no prejudice to the Veteran since it means that the evidence in its entirety will be reviewed. As such criteria as abnormal affect, impaired impulse control, and disturbances of motivation and mood are shown, the Board finds that a rating of 50 percent is warranted. Additionally, the January 2007 VA examiner noted that the Veteran had experienced panic attacks that occurred more than once a week. Further, the Veteran has given credible Board hearing testimony concerning his difficulty in establishing and maintaining effective social relationships that have persisted throughout the appeal period. While a speech disorder, difficulty in understanding complex commands, memory problems, impaired judgment, and impaired abstract thinking have not been demonstrated, the Board concludes that the Veteran has shown symptoms associated with depressive disorder that more nearly approximate the criteria for a 50 percent rating during the entire appeal period. In finding that the Veteran is entitled to a rating of 50 percent for his depressive disorder, the question now becomes whether the Veteran is entitled to a rating in excess of 50 percent for his service-connected depressive disorder. A review of the claims file reveals that, despite undergoing multiple VA psychiatric examinations and despite receiving both private and VA treatment, symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, and spatial disorientation have not been shown. While the August 2009 VA examiner noted that the Veteran had obsessional rituals, the August 2009 VA examiner stated that they were not severe enough to interfere with routine activities. While the Veteran's private treatment records occasionally observed disorganized and ruminative cognition, the Board observes that no formal speech or cognitive disorder was noted, and it does not appear that the Veteran has ever asserted as much. While the August 2009 VA examination noted that the Veteran's personal grooming and hygiene were poor, the record, including the VA and private treatment records, do not indicate that neglect of personal appearance and hygiene have been consistently shown. While it is clear that the Veteran's depression has impacted his social functioning, and a diminished participation in activities has been noted, the August 2009 VA examiner noted that his depression was mild. As for employment, the Veteran himself has consistently maintained that his employment difficulties centered on disability other than his depression. The Veteran's GAF scores on VA examinations have included 55 (January 2007 VA examination) and 65 (August 2009 VA examination), and the VA treatment records tend to reveal a GAF of 55. Private treatment records tended to primarily reveal a GAF of 60. Such findings tend to reflect moderate levels of depressive symptoms, and a review of the clinical findings from the psychiatric records do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for depression is not warranted at any time during the appeal. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his depression. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his depression according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's depression has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's depression is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. In conclusion, the evidence supports a 50 percent evaluation, but no higher, for depression. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's depression is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected depression. The Veteran's symptoms such as sleep difficulties, anger, difficulty in establishing effective relationships, and impaired impulse control are specifically enumerated under the applicable Diagnostic Codes. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating of 50 percent for Major depressive disorder is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs