Citation Nr: 1324178 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-37 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial rating greater than 50 percent for an acquired psychiatric disorder, to include major depressive disorder. REPRESENTATION Appellant represented by: Karl Kazmierczak, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from January 2000 to January 2003. This matter comes to the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona which granted service connection for major depressive disorder and assigned a 50 percent rating. In June 2013, a Board videoconference hearing was held at the RO before the undersigned; the transcript is of record. The Veteran submitted another waiver of RO consideration in conjunction with the hearing, in addition to the multiple waivers already of record. At the hearing the undersigned indicated that the Board would address the issue of TDIU. A 100% evaluation for the acquired psychiatric disorder would appear to render moot the TDIU issue. However, it has been held that special monthly compensation based on entitlement to aid and attendance may be warranted where a veteran does not have a single disability rated 100 percent disabling and is in receipt of a total disability rating based on individual unemployability, but only if there is a single disability for which he was granted service connection at any time that would warrant such a rating. Buie v. Shinseki, 24 Vet. App. 242, 250 (2010). Notwithstanding, in this case, the Veteran already has a 70% evaluation for a TBI. Therefore, a separate TDIU does not provide him any additional benefit in this case. See 38 USCA § 1114(s) and 38 CFR § 3.350(i). Statutory Housebound requirements include at least a single 100 percent rating (as in this case) and separate and distinct disabilities independently ratable at 60 percent (it does not have to be a single disability rated at 60 percent, but can be multiple disabilities with a combined rating of 60 percent), also as in this case. Therefore, under Buie, the TDIU issue is moot. The Veteran's virtual VA file has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The medical evidence establishes that the Veteran's service-connected acquired psychiatric disability, to include major depressive disorder, demonstrates an overall disability picture of total occupational and social impairment at this time. CONCLUSION OF LAW The criteria for a 100 percent rating for an acquired psychiatric disorder, to include major depressive disorder, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). 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). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). While the Veteran is competent to offer evidence as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity under pertinent rating criteria or the nature of the service-connected pathology is not probative evidence. Layno v. Brown, 6 Vet. App. at 470 (1994); Grottveit v. Brown, 5 Vet. App. at 92-93 (1993). In assessing the appropriateness of the rating for the disability at issue, the Board has reviewed all of the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, however, it need not discuss each piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning this claim. The Veteran must not assume the Board has overlooked pieces of evidence that are not explicitly discussed in this decision. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to him. Id. An acquired psychiatric disability, to include major depressive disorder, is evaluated under a General Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent rating is warranted when 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 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, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF of 31-40 is defined as some impairment in reality resting 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). An initial rating of 50 percent was assigned for major depressive disorder, effective October 23, 2008, the effective date of the change in law which allows the physical and emotional or behavioral manifestations of a traumatic brain injury (TBI) to be rated separately. In August 2011 a VA examination was conducted. The examiner noted the Veteran had been diagnosed major depression with psychosis, posttraumatic stress disorder (PTSD) and TBI. The examiner opined that the Veteran's mental diagnoses were best summarized by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and or mood. The Veteran reported he is often forgetful of correct procedures at work and often his supervisor has to correct him and that he is socially isolated because of his anger as he yells at people for small things. The Veteran reported that he had never been married but had been engaged twice since 2003 but both engagements ended because of his irritability and poor communication. He also reported that he avoids his parents and brother because he does not want to blow up at them. The examiner identified the following symptoms that apply to the Veteran's diagnoses: depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence, spatial disorientation, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In September 2012 the Veteran's treating VA psychiatrist, Dr. CA, provided a medical statement addressing the Veteran's current disabilities. Dr. CA diagnosed major depressive disorder with psychosis and PTSD. Dr. CA reported that the Veteran is currently on medication to manage his psychiatric diagnoses, that the prognosis for complete recovery of all symptoms was very low and that he could not see the Veteran returning to gainful employment until at least November 2013. Dr. CA stated his professional opinion was that the Veteran is no longer able to perform the essential elements of his job as a Lead Transportation Security Officer. Dr. CA explained that the Veteran suffers from a combination of medical conditions including major depressive disorder, PTSD, chronic back pain, TBI, and hyperlipidemia. He reported that the Veteran's psychiatric conditions are manifested by symptoms of depression, anxiety, irritability, low frustration and stress tolerance, insomnia, poor focus and memory difficulties. Dr. CA concluded that the Veteran could no longer continue in his physically and mentally demanding job due to the severity, frequency, and debilitating nature of his conditions and that his psychiatric conditions alone prevent him from being able to continue in such a job. Dr. CA opined that the Veteran's severe psychiatric conditions are likely permanent. Treatment records reveal a rather consistent picture of the Veteran's acquired psychiatric disability. VA treatment records note the Veteran's primary symptoms to be anger and irritability, chronic impaired sleep, nightmares, anxiety and depression. Numerous times in the last year, 2013, the Veteran had reported fleeting thoughts of violence to VA staff but with no intent. A few years ago he had been thrown out of a VA clinic because of his angry confrontation with staff. He is highly irritable which impairs his judgment, reporting that he just says mean things without thinking about it. In the last year there appeared to be a little improvement as the Veteran is now married, does have some contact with his brother and parents, and sometimes goes to church. GAF scores have ranged from 40-50. In this case, the Veteran has most of the symptoms listed in the criteria for a 100 percent rating and the overall impairment caused by these and other symptoms most nearly approximates the criteria for a 100 percent rating under the general rating formula for mental disorders at this time. Resolving any doubt in favor of the Veteran, the criteria for 100 percent evaluation for an acquired psychiatric disorder are met. The Veteran's overall disability picture most resembles total occupational and social impairment at this time. This finding does not suggest that the Veteran will never be able to work or that his condition will not improve over time with assistance. However, at this time, based on these facts, the Veteran's condition warrants this evaluation. At hearing, the Veteran's testimony, which the Board found to be entitled to very high probative value, was clear regarding his difficulties and the challenges he is now facing associated with his service connected condition. A 100 percent rating is warranted for the Veteran's acquired psychiatric disorder, to include major depressive disorder at this time. ORDER An initial rating of 100 percent for an acquired psychiatric disorder, to include major depressive disorder is granted subject to controlling regulations governing the payment of monetary awards. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs