Citation Nr: 1321685 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-45 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating for major depressive disorder with generalized anxiety and panic disorders in excess of 50 percent from August 8, 2007, and 70 percent from December 16, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from October 2000 to August 2007. This case comes before the Board of Veterans' Appeals (Board) based on disagreement with the initial rating assigned for major depressive disorder with generalized anxiety and panic disorders following the grant of service connection for this disability by a March 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2008 rating decision, the RO assigned a 50 percent rating for this disability effective from August 8, 2007, and an interim decision increased the rating to 70 percent effective from December 16, 2009. As the 70 percent rating was not assigned effective from the date of the grant of service connection, there is for consideration entitlement to a rating in excess of 50 percent for the service connected physiatric disability from August 8, 2007, and 70 percent from December 16, 2009. AB v. Brown, 6 Vet. App. 35 (1993). The issue for consideration has been listed accordingly on the Title Page. As a final preliminary matter, while the Veteran in his November 2009 substantive appeal indicated that he did not wish to attend a hearing before the Board, a December 2009 letter from the Denver, Colorado, RO provided the Veteran with the additional options in connection with his "request" for such a hearing, even though he did not request such a hearing in his substantive appeal, or otherwise request such a hearing. Thus, while the December 2009 letter indicated that if he did not respond to this letter that he would remain on the "pending list" for a hearing and be scheduled for a BVA travel board hearing, and the Veteran did not respond to his letter, as he never in fact requested to be scheduled for a Board hearing, the Board will proceed on the basis that the Veteran does not desire such a hearing. FINDING OF FACT The positive and negative evidence as to whether the Veteran's major depressive disorder with generalized anxiety and panic disorders has been manifested by total occupational and social impairment from the date of the grant of service connection of August 8, 2007, is in relative balance. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial 100 percent rating for major depressive disorder with generalized anxiety and panic disorders have been met from August 8, 2007. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3,326, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Given the favorable resolution herein, additional discussion of those procedures is unnecessary. Review of the Virtual VA file (VA's electronic data storage system) reflects a July 2012 rating decision that makes reference to the existence of VA outpatient treatment records viewed electronically dated through July 26, 2012; however, the Virtual VA file before the undersigned at the time of this writing only reflects clinical records date through November 22, 2011. Again, given the favorable resolution of the claim herein, the Board may adjudicate the claim without obtaining and reviewing the additional VA clinical records referenced in the July 2012 rating decision not currently of record without prejudicing the Veteran or violating due process. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Legal Criteria/Analysis When there is an approximate balance in the 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); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims discussed the concept of the "staging" of ratings, finding that, where an initially assigned disability evaluation has been disagreed with as in the instant case, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The service connected major depressive disorder with generalized anxiety and panic disorders has been rated under DC 9434, and the criteria for rating such psychiatric disability are set forth in the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. Under this formula, a 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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. Id. A 100 percent rating is assigned 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. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (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 the level of occupational or social impairment. Id. at 443. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Considering the pertinent evidence in light of the applicable criteria and affording the Veteran the benefit of the doubt, the Board finds that a 100 percent rating is warranted for major depressive disorder with generalized anxiety and panic disorders throughout the appeal period. In making the above determination, while the Board recognizes that there is some negative evidence weighing against the assignment of such a rating, the probative weight of such evidence is in relative balance with the positive evidence in favor of such a rating documenting severe psychiatric problems from service to the present time. Summarizing some of this positive evidence, as the Veteran explained at his January 2008 VA psychiatric examination, his military duties during service as a prison guard in Korea included witnessing a number of suicides (his DD Form 214 reflects a military occupational specialty, "corrections specialist," consistent with such duty, and also reflects an award indicative of service in Korea). At his January 2012 VA psychiatric examination, the Veteran also described being attacked during a prison riot during service. Ultimately, the Veteran had such severe psychiatric problems during service that he required psychiatric hospitalization in February 2007. After service, the Veteran's psychiatric difficulties were so severe that he was only able to work for two months as an electrician's apprentice and approximately one month in a convenience store. See eg. January 2008 VA psychiatric examination reports. The Veteran's demeanor at the January 2008 VA psychiatric examination, wherein he was "extremely anxious and was shaking all over, literally," was such that the examiner stated that he would "certainly have a great deal of difficulty getting a job if he had [the same] body and extremity movements that he had during this interview." The Veteran told the examiner that such movements were typical. The examiner found the Veteran's insight to be "extremely limited," and assigned a GAF score of 53, which approximates "serious" impairment in social or occupational functioning. Thereafter, the Veteran's psychiatric problems were so severe as to result in suicidal ideation (to include as reflected on a July 30, 2009, VA psychiatric treatment report) and to require VA psychiatric inpatient treatment in September 2009. His GAF score at the time of this hospitalization was 41, which reflects major impairment in several areas such that, according to the examples provided in DSM-IV, a person would become unable to work. An October 2009 statement from a VA psychiatrist participating in the treatment of the Veteran noted that he continued to be unemployed and "basically housebound." At a December 2009 VA examination, the Veteran's affect again demonstrated significant anxiety, and he displayed a rocking motion throughout the interview and was "never still." The examiner noted that the Veteran "seems to be quite honest [in] not trying to embellish or exaggerate symptomatology." The Veteran reported that he had become suicidal just before his wife left six months previously. The examiner concluded that the Veteran's psychiatric problems resulted in deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. This examiner also found the Veteran to be unemployable at that time due to his psychiatric problems and to require continuous psychotherapy and medication. The GAF score was 47. Following the December 2009 examination as reflected by a March 2010 rating decision, the Veteran was granted a total disability rating for compensation based on individual unemployability (TDIU), effective from the date of this December 2009 VA psychiatric examination. [An August 2011 rating decision, contained in the Virtual VA File but not physically of record, proposed to discontinue entitlement to TDIU based on the Veteran's failure to complete a VA Form 21-4140 to confirm that he remained unable to maintain gainful employment as a result of service-connected disability. A November 2011 rating decision, also contained in the Virtual VA File but not physically of record, effectuated the discontinuance of entitlement to TDIU based on the Veteran's failure to submit a VA Form 21-4140]. At a January 2012 VA examination, the Veteran described suicidal ideation three months previously and persistent, unrelenting anxiety about, as previously indicated, memories of an attack during a prison riot during service. The examiner stated that the Veteran could not even maintain part-time employment given that his mood and anxiety would significantly limit his ability to concentrate, focus, engage with others, and manage stress. The GAF score assigned at this examination was 45. Although not all of the Veteran's symptoms are specifically listed in the General Rating Formula, the symptoms listed in the criteria are meant only as examples. See, e.g., Mauerhan. It is the impact of a Veteran's psychiatric symptoms on occupational and social functioning that is of primary importance, and from the clinical evidence, examiners' comments as to the inability of the Veteran to work, and the GAF scores as set forth above from the time service connection was granted, it cannot be said that the preponderance of the evidence is against a conclusion that service connected psychiatric disability resulted in total occupational and social impairment from the date of the grant of service connection of August 8, 2007. Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied, and when a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, supra. As such, and without finding error in the assignment of the ratings for such disability by the RO, the Board will exercise its discretion to find that the evidence is in relative equipoise and conclude that the criteria for an initial 100 percent rating for major depressive disorder with generalized anxiety and panic disorders have been met from August 8, 2007, the effective date of the grant of service connection. Id. ORDER For the period from August 8, 2007, entitlement to a 100 percent rating for major depressive disorder with generalized anxiety and panic disorders is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs