Citation Nr: 1317563 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-39 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for an adjustment disorder with depressed mood. 2. Entitlement to an initial rating higher than 60 percent for Crohn's disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for Crohn's disease, assigning a 40 percent rating, and for an adjustment disorder with depressed mood, assigning a 30 percent rating, both effective May 1, 2007. In October 2008, the RO increased the rating for Crohn's disease to 60 percent disabling, also effective May 1, 2007. In March 2013, the Veteran testified at a hearing held at the RO. The issue of entitlement to an increased rating for Crohn's disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to April 20, 2011, the Veteran's adjustment disorder with depressive features was productive of no more than occupational and social impairment with occasional decrease in work efficiency with intermittent inability to perform occupational tasks with depression, anxiety, sleep impairment, suspiciousness, weekly panic attacks, and mild memory loss, but with otherwise satisfactory routine behavior, self-care, and normal conversation. 2. Since April 20, 2011, the Veteran's adjustment disorder with depressive features has been productive of occupational and social impairment with deficiencies in such areas as work, school, family relations, judgment, thinking, or mood, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to April 20, 2011, the criteria for an initial rating in excess of 30 percent for an adjustment disorder with depressive features have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.125- 4.130, Diagnostic Code (DC) 9440 (2012). 2. Since April 20, 2011, the criteria for an increased initial rating of 70 percent for an adjustment disorder with depressive features have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.14, 4.125- 4.130, Diagnostic Code (DC) 9440 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (West 2002 & Supp. 2012). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a January 2007 letter, sent prior to the initial June 2007 rating decision, advised the Veteran of the evidence and information necessary to substantiate his increased rating claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's VA treatment records and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Veteran's Virtual VA claims file, an electronic claims file, has also been reviewed. Additionally, he was afforded VA examinations in April 2007 and April 2011, in order to adjudicate his increased rating claim. In this regard, the Board finds that the proffered opinions regarding the severity of the Veteran's psychiatric disorder was based on an interview with the Veteran, a review of the record, and a full examination. Thus, the examinations are adequate to decide the claims. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ 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. In this case, the VLJ explained the issue on appeal, and elicited testimony to substantiate the increased rating claim. No outstanding evidence was reported. The Veteran volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his psychiatric disorder. Accordingly, the Veteran is not shown to be prejudiced. The Veteran has not 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. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2012). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Adjustment disorders with depressed mood are rated under Diagnostic Code 9440. 38 C.F.R. § 4.130, DC 9440 (2012). A 30 percent disability rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned when the psychiatric condition produces 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); inability to establish and maintain effective relationships. A maximum 100 percent rating is assigned when there is total occupational or 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 psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). On April 2007 VA examination, the Veteran reported having trouble sleeping for four years. For the past four years, he had had intermittent depressive moods and lack of focus. These symptoms happened up to 20 times per months and made it so that he was not deployable and could not fly as a pilot. He was taking psychiatric medication with poor response. Since he developed his mental condition, there was some mild social function changes. He was currently working and had a good relationship with his supervisor. His depressive moods were related to his ongoing severe Crohn's disease. Mental status examination reflected that his orientation was within normal limits. His appearance, hygiene, and behavior were appropriate. Communication and speech were within normal limits. He had a lack of focus and required a day minder. He did not have panic attacks or suspiciousness. There was no delusion or hallucination history. His thought processes were appropriate. His judgment was not impaired. His abstract thinking was normal. His memory was within normal limits. There were no suicidal or homicidal ideations. The diagnosis was adjustment disorder with depressed mood. A GAF score of 75-80 was assigned. The examiner stated that the Veteran did not have difficulty performing activities of daily living. He was able to establish and maintain effective work/school and social relationships. In June 2007, the Veteran stated that his reliability had been significantly reduced due to his sleep trouble, depression, and concentration issues. He had low energy that did not allow him to maintain effective work relationships. He had stated that he had a flat affect to the examiner. He had stated to the examiner that he had experienced a severe reduction in emotional expression and extreme apathy, had difficulty understanding complex commands, and had impairment of short-term memory. He had extreme marital difficulties. Following bowel surgery, he had withdrawn from life and was unable to move due to fear. He had nightmares of having a third bowel resection and suffered from debilitating panic episodes associated with health care. On April 2011 VA examination, the Veteran described his symptoms of discouragement related to Crohn's disease and the limiting factors in his life. The disease was severe and caused a lot of pain. The depressed feelings came and went. He worried a little less than half of the time. The severity of his symptoms was moderate. The symptoms were episodic, fluctuating. The Veteran stated the symptoms affected his total daily functioning. He was in the midst of a divorce. His employment was fine. He denied trouble sleeping. He denied a history of violent behavior or suicide attempts. He was not receiving any psychiatric treatment. In this past year, he had stopped engaging socially. He had taken a day off of work due to pain in his stomach and feeling too depressed to get out of bed. With regard to his family history, he reported that he was going through a divorce. He had an excellent relationship with his five children. He had a good relationship with his mother and brother but not with his father. With regard to his social history, he reported being involved with his church. He stated that his relationship with his supervisor and co-workers at work was good. Mental status examination revealed that his orientation was within normal limits. His appearance and hygiene were appropriate. His behavior was appropriate. He maintained good eye contact. His affect and mood were depressed. He manifested as down in the dumps, sad, and blue. His communication, speech, and concentration were within normal limits. There were no panic attacks or suspiciousness. There was no indication of delusions or hallucinations. His thought processes were appropriate and he was able to understand directions. There was no slowness of thought and he did not appear confused. His judgment was not impaired. His abstract thinking was normal. His memory was within normal limits. There was no suicidal ideations. The diagnosis was adjustment disorder with depressed mood. The GAF score assigned was 48. The examiner commented that mentally, the Veteran did not have difficulty performing activities of daily living. He was able to establish and maintain effective work/school and social relationships. His psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks, although generally he was functioning satisfactorily with routine behavior, self-care, and normal conversation. He had no trouble understanding complex commands. In March 2013, the Veteran submitted an email correspondence that stated that the Veteran had mentioned suicidal thoughts when undergoing a parent evaluation. Also, a colleague of the Veteran stated that the Veteran seemed depressed, did not participate in extra-curricular activities, and did not socialize with his co-workers. He used anxiety spray and had trouble sleeping. He seemed distracted and unable to focus. In an accompanying statement, the Veteran reported that he had had suicidal thoughts since 2009. The Veteran mentioned anxiety related to his divorce proceedings. It was stated in a custody evaluation that his medical problems contributed to his withdrawal from the family. He stated that he had had domestic violence charges against him. In this case, the Board finds that prior to April 20, 2011, a rating higher than 30 percent is not warranted. Significantly, on April 2007 VA examination, a GAF score of 75-80 was assigned, denoting symptoms that were transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Such a score is not indicative of a moderate psychiatric disorder, but rather fits well within the criteria of a 30 percent rating for a mild psychiatric disorder. The VA examination demonstrated mild psychiatric impairment, with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran displayed routine behavior, self-care, and conversation. He displayed a depressed mood, anxiety, and a chronic sleep impairment. He did not report panic attacks more than weekly and he did not report memory loss. In July 2007, the Veteran stated that the April 2007 report was incorrect for many reasons because he did report a flat affect, difficulty understanding complex demands, impairment of short term memory, and severe reduction in emotional expression to the examiner. However, there is simply no indication that such was in fact reported to the examiner or that the examiner was ignoring more extreme symptoms. Rather, the examiner noted only intermittent depressive moods, lack of focus, and sleep impairment, with normal functioning overall. The examiner's observations on mental status examination do not suggest such a severe psychiatric impairment as later contended by the Veteran, and are not suspicious for such. For these reasons, the Board finds that the VA examination report is more credible than the Veteran's assertions in July 2007, especially because the assertions are so much more extreme than any section of the report. Accordingly, those contentions are afforded less weight than the VA examiner's professional and trained opinion. Finally, the Veteran has not submitted any other psychiatric treatment records to suggest that his mental functioning at the time was worse than found on VA examination. Notably, his prominent sleep impairment and depressed mood are both accounted for in the 30 percent rating. Accordingly, the Board finds that a rating higher than 30 percent for the period prior to April 20, 2011, is not warranted. However, since April 20, 2011, the date of VA examination, the Board finds that an increased 70 percent rating is warranted for his adjustment disorder with depressive mood. For, at the time of the 2011 examination, a significantly lower GAF score of 48 was assigned, suggesting 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). The seriousness of that score fits within the criteria of a 70 percent rating, especially because the Veteran displayed symptoms of occupational and social impairment, with deficiencies in many areas, such as work, family relations, judgment, thinking, and mood. He had near-continuous depression affecting the ability to function effectively at work and over the previous year had withdrawn from social contact. He was going through a divorce in part due to his Crohn's disease, he displayed difficulty in adapting to stressful circumstances, and displayed difficulty establishing and maintaining effective relationships. Moreover, other evidence dated since that time supports the higher 70 percent rating. A November 2011 custody evaluation noted that his health issues played a role in his withdrawal from the family. An e-mail from the author of the evaluation confirmed that the Veteran reported suicidal thoughts. A March 2013 letter from the Veteran's colleague also noted his withdrawal, continuous depression, anxiety, and trouble focusing on tasks. Thus, it appears that on April 20, 2011, VA examination, the Veteran's mental functioning had greatly decreased due to his divorce, in part related to his Crohn's disease, his social withdrawal, his ongoing pain, and ongoing depression with a newer onset of anxiety. Thus, there is a clear delineation in this case of a decrease in functioning such that a staged rating is appropriate. The Board cannot find a date prior to this examination upon which to assign the higher rating. Accordingly, in light of the Veteran's disability picture as described on April 20, 2011, VA examination, the Board finds that since that date, a higher 70 percent rating is warranted. However, a higher 100 percent rating is not warranted, as at no time has the Veteran displayed signs of 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, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Veteran has not contended that he suffers from any of those symptoms. III. Other Considerations In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Veteran has been shown to be gainfully employed throughout the appeal period, and his employer has made accommodations for his psychiatric disorder. Therefore, a claim for TDIU has not been raised. An extra-schedular disability rating is warranted if 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 application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that 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. 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. Second, 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant'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 extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected adjustment disorder with depressed mood with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that the Veteran's adjustment disorder with depressed mood has warranted no more than a 30 percent rating prior to April 20, 2011, and a 70 percent rating thereafter. The benefit of the doubt rule has been applied in this instance. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Prior to April 20, 2011, a rating higher than 30 percent for an adjustment disorder with depressed mood is denied. Since April 20, 2011, an increased 70 percent rating for an adjustment disorder with depressed mood is granted. REMAND Additional development is necessary prior to adjudication of the claim for increased rating for Crohn's disease. The Veteran contends that his Crohn's disease warrants a 100 percent rating because he suffers from pronounced symptoms, resulting in marked malnutrition, anemia, and general debility, or with serious complications. On April 2011 VA examination, there was no indication that the condition caused anemia or malnutrition. Serious complications were not specifically noted. Private treatment records are also negative for findings of anemia or malnutrition. A January 2009 private record states that the Veteran's disease has caused some iron deficiency anemia. He was at risk of malabsorption and malnutrition. He was not currently malnourished. His major symptom was abdominal pain. A March 2013 private record states that the Veteran's symptoms were episodic but could be severe. The Veteran has submitted private records showing that there was stricture and inflammation of the colon. The Veteran also states that because he has a vitamin D and vitamin B-12 deficiency resulting from his Crohn's disease, such leads to malnutrition. From this evidence, it is unclear whether the Veteran is considered to suffer from anemia, malnutrition, or other serious complication. Accordingly, in light of the Veteran's statements and conflicting medical evidence, the severity of the Veteran's Crohn's disease, and whether a 100 percent rating is accurate, must be clarified by further VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his Crohn's disease. The examiner should review the claims file, including a copy of this Remand. The examiner should provide answers to the following questions, with rationale. a) After physically examining the Veteran and reviewing all pertinent medical records, including those dated in January 2009 and March 2013 listed in the body of this remand, and considering the Veteran's assertions of malnutrition due to vitamin deficiency, does the Veteran's Crohn's disease result in marked malnutrition, anemia, and general debility? b) After physically examining the Veteran and reviewing all pertinent medical records, does the Veteran's Crohn's disease result in serious complications, such as, but not limited to, abscess of the liver? Is the current stricture and inflammation in his colon a serious complication? 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs