Citation Nr: 1324181 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-33 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for septal deviation, status post septoplasty and allergic rhinitis. 2. Entitlement to an initial evaluation in excess of 30 percent for adjustment disorder. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from March 1969 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Procedural History The Board considered the Veteran's claims and issued a decision denying his appeal in March 2009. The Board then received additional development pertinent to the claims on appeal that had been undertaken by the RO prior to the March 2009 Board decision. In August 2009, the Board, on its own motion, vacated the March 2009 denial and remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. The case is once again before the Board for appellate consideration. FINDINGS OF FACT 1. The Veteran has been assigned the maximum schedular evaluation throughout the appeal period for deviated septum with allergic rhinitis and polyps. 2. The Veteran's adjustment disorder is manifested throughout the appeal period by no more than mild occupational and social impairment due to such symptoms as irritability, anxiety, depression, some social isolation and difficulty sleeping without panic attacks or impaired speech or memory. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for deviated septum with allergic rhinitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Codes 6502-6522 (2012). 2. The criteria for an initial evaluation in excess of 30 percent for adjustment disorder have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.59, 4.130, Diagnostic Code 9440 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, VA's duty to notify has been satisfied through a number of notice letters, including those sent in August 2006, May and June 2007, April 2008 and October 2009, that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim for an increased initial evaluation, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's disabilities, as they involved a review of his pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate description of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As noted above, the instant case was remanded in August 2009 to request the Veteran identify any treatment pertinent to his deviated septum and/or adjustment disorder. While the Veteran was requested to identify such records in an October 2009 letter, he has not responded to this request. The Board finds there has been substantial compliance with the August 2009 remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence.") In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology 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. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Adjustment Disorder The Veteran asserts that his adjustment disorder is more severe than contemplated by the assigned 30 percent evaluation. Diagnostic Code 9440, pertaining to chronic adjustment disorder, s subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, the currently assigned 30 percent valuation contemplates 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-car, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9440, General Rating Formula (2012). A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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 evaluation is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. GAF scores ranging between 81 and 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging between 71 and 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging between 61 to 70 reflect some 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 functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging 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). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some 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; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV, are to be considered. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, then the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). A September 2006 VA psychiatric examination report notes the Veteran appeared clean and neatly groomed with clear speech and a cooperative, friendly and attentive attitude. His affect appeared constricted, mood anxious and depressed, and he was oriented to person, time and place. His attention and judgment were intact, thought process and content unremarkable, and immediate, recent and remote memory normal. He denied delusions and hallucinations, panic attacks, homicidal and suicidal thoughts and episodes of violence. He reported being married to his current wife for 23 years, with two adult children whom he visits once every month or two. Finally, he reported working for UPS for 32 years, having lost no time in the previous year due to his mental health. He was diagnosed with adjustment disorder with depressed and anxious mood, and assigned a GAF score of 65, representing some mild symptoms or some difficulty with social and occupational functioning. A June 2007 VA examination report notes the Veteran appeared clean, neatly groomed and appropriately dressed. He was tense and anxious with an appropriate affect. His speech was spontaneous and rapid, and appeared cooperative, friendly and attentive towards the examiner. He was oriented to person, time and place, thought process and content unremarkable without delusions or hallucinations. He denied panic attacks, homicidal and suicidal thoughts, and was able to maintain a minimum personal hygiene. He again reported working at UPS for over 30 years, and did not report missing work due to mental health. He was again assigned a GAF score of 65. A May 2008 VA treatment record notes the Veteran retired from his UPS position and was remodeling a house and doing yard work. He reported he and his wife enjoy their adult children and family life. He denied feeling hopeless and suicidal thoughts or attempts. Finally, a January 2009 VA examination notes continued symptoms of depression and anxiety with difficulty concentrating, excessive worry and difficulty sleeping. He reporting maintaining his interests and going to coffee with friends. He appeared neatly groomed and appropriately dressed with spontaneous, clear and coherent speech. His affect was appropriate, mood anxious and was oriented in all spheres. He reported no delusions or hallucinations, denied panic attacks, suicidal and homicidal ideation, and was able to maintain minimum personal hygiene. His immediate, recent and remote memory was normal. He was again assigned a GAF score of 65. An evaluation of 30 percent contemplates symptomatology including depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). See General Rating Formula. Such symptomatology is reflected throughout the appeal period. However, an evaluation of 50 percent contemplates reduced reliability and productivity due to symptoms such as weekly panic attacks, difficulty in understanding complex commands, speech and memory impairment and difficulty in establishing effective work and social relationships. Id. Such symptomatology is not supported by the evidence of record at any time during the appeal period. As described above, the Veteran has maintained employment until retirement and a good relationship with his friends and family. He has consistently been found to have intact speech, communication and judgment/thinking skills without impaired memory. In addition, his GAF score, consistent with the symptomatology shown on examination, reflected mild symptoms. The Board is aware that the symptoms listed under the 50 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 50 percent evaluation. See generally Mauerhan. However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's symptoms more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks rather than occupational and social impairment with reduced reliability and productivity. In reaching its decision, the Board has considered the entire evidence of record, including GAF scores. Also considered was the benefit-of-the-doubt rule. Ultimately, the Board has determined that the preponderance of the evidence is against the Veteran's claim for an initial evaluation greater than 30 percent at any point during the appeal period. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Deviated Septum with Allergic Rhinitis The Veteran asserts that he has suffered from chronic sinus problems, manifested by chronic headache pain and pressure, congestion and difficulty breathing through the nose. Based on such symptomatology, he believes an evaluation greater than the currently assigned 30 percent is warranted for his service-connected disability. Initially, the Board notes the Veteran's currently assigned 30 percent evaluation is the maximum evaluation available under Diagnostic Codes 6502-6522 for septal deviation with allergic rhinitis. Therefore, a higher schedular evaluation is not warranted. VA and private examination reports note the Veteran suffers from allergic rhinitis with polyps and a greater than 50-percent blockage of both nasal passages. In addition, a March 2007 private medical report notes the Veteran also suffers from symptoms of sinusitis, which was confirmed by a subsequent VA examination in June 2007. By a September 2007 rating decision, the Veteran was awarded a separate 30 percent evaluation for sinusitis with headaches. The Veteran did not express disagreement with this assigned evaluation. Other than the separately service-connected sinusitis with headaches, the competent evidence does not show additional symptomatology to support the assignment of another separate evaluation. As noted above, the Veteran is currently assigned the maximum schedular evaluation for his deviated nasal septum with allergic rhinitis. Therefore, the Veteran's claim for an initial evaluation in excess of 30 percent for deviated septum with allergic rhinitis on a schedular basis must be denied. Final Considerations As a final note, the discussion above reflects that the symptoms of the Veteran's adjustment disorder and deviated septum with allergic rhinitis are contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). There is no evidence of marked interference with employment or frequent hospitalization due to adjustment disorder or deviated septum with allergic rhinitis. Further, the Board observes the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), is not applicable in the instant case. While entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims, the Board observes entitlement to TDIU has been denied during the course of the instant appeal. See May 2009 rating decision. The Veteran has not initiated an appeal of this rating decision. Therefore, remand or referral of a claim for TDIU is not necessary in the instant case. ORDER An initial evaluation in excess of 30 percent for adjustment disorder is denied. An initial evaluation in excess of 30 percent for deviated septum with allergic rhinitis is denied. ____________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs