Citation Nr: 1324503 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-14 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for major depression prior to February 6, 2012 and in excess of 50 percent thereafter. 2. Entitlement to an initial rating for major depression in excess of 70 percent. 3. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The October 2007 rating decision granted the Veteran service connection and a 30 percent initial rating for major depression, effective from May 10, 2007. The Veteran's claim for an initial rating in excess of 30 percent for major depression was remanded by the Board for further development in September 2011. An August 2012 rating decision awarded the Veteran a 50 percent rating for major depression from February 6, 2012. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. The issue of entitlement to a rating in excess of 70 percent for major depression and the issue of entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire period of time that is covered by this claim, the Veteran's psychiatric disability has resulted in occupational and social impairment with deficiencies in the areas of work, family relations, thinking and mood due to severe symptoms, which include social isolation, anxiety, depression, periods of violence, suspiciousness, chronic sleep impairment, flattened affect, occasional thoughts of suicide, and difficulty adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a 70 percent rating for major depression have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9343 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This appeal arises from the Veteran's disagreement with the initial rating evaluation following the grant of service connection. The Court of Appeals for Veterans Claims held that in cases 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 section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Nevertheless, the Board notes that the Veteran was provided VCAA notice regarding his claim for service connection in June 2007. The letter informed him how to substantiate his claim for service connection and the allocation of responsibilities between himself and VA. He was also informed as to how ratings and effective dates are assigned pursuant to Dingess/Hartman v. Nicholson. As the notice that was provided to the Veteran in connection with his claim for service connection complied with the duty to notify, no further notice was required after service connection was granted. As to the duty to assist, VA has associated with the claims folder the Veteran's VA treatment records and Social Security Administration (SSA) records. The Veteran has been afforded VA medical examinations. The Board has reviewed these examination reports and finds them to be adequate. Each is based on a review of the record, an examination of the Veteran, and a discussion of his symptoms in relation to the applicable rating criteria. Additionally, the Veteran has submitted lay statements in support of his claim. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal and he has done so. Neither the Veteran nor his representative has indicated that there are any additional records to support the Veteran's claim that have not been obtained. In sum, the Board is satisfied that the originating agency properly processed the Veteran's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Rating Criteria Diagnostic Code 9434 provides that a 30 percent rating is warranted for major depression where 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is 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; and memory loss for names of close relatives, own occupation, or own name. III. Entitlement to a rating in excess of 30 percent, prior to June 6, 2012, and in excess of 50 percent thereafter. As explained below, the Board finds that the Veteran meets the criteria for a 70 percent rating for his major depression from the date service connection was granted, May 10, 2007. The record indicates that the Veteran's major depression symptoms during this time period caused occupational and social impairment with deficiencies in most areas such as work, family relations, thinking, and mood. This is shown by a June 2007 VA examination report in which the Veteran stated that he was isolating, and pretty much stayed to himself. He also stated that he had no real leisure activities, that he had a short temper, and that he had gotten into many fights. The Veteran reported symptoms of depression, insomnia, poor appetite, decreased energy, and poor concentration. He also reported that he struggled with anxiety. The Veteran was noted to be on psychiatric medication, with poor effectiveness. He indicated that he was "pretty rough" on his sons and the relationship was strained. The June 2007 VA examiner specifically noted that the Veteran's major depression symptoms resulted in deficiencies in most areas including thinking, as his concentration was impaired; family relations, as he was losing his temper more often due to his moods; work, as his mood would interfere with the ability to work; and mood as he was struggling with his depression. The June 2007 VA examination report noted the Veteran's global assessment of functioning (GAF) score to be 53. A GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). See Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). The Veteran's wife submitted a statement indicating that he would curse and threaten to hit his sons. When she would try to get him to stop, he would cry because of the way he acted. The Veteran generally would spend his time in the garage so he would not have to be around people. The Veteran's son provided a statement indicating that the Veteran would get angry at him and others for no reason and start cursing and fighting. He also noted that the Veteran would cry and was depressed all the time. While he and his father were close at one time, this was no longer the case. In addition, a VA treatment record dated in February 2007 noted that the Veteran had ongoing interpersonal conflicts, disregard for authority, and lost his job in part because of his ill-temper. He was very irritable and alienated his family. On mental status examination, the Veteran's mood was irritable and angry. Affect was constricted and thought content was obsessional and concrete. He had impaired concentration, insight, judgment and abstraction. The assigned Global Assessment of Functioning (GAF) score GAF was 46. GAF scores between 41 to 50 indicate 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 QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM THE DSM-IV, 46-47 (1994). A VA treatment record dated in January 2008 noted that the Veteran was still not getting along with people and he found he must avoid people including his children and his siblings. His relationship with some family members was very tense and had deteriorated over time. He even had to avoid his brother with whom he historically had a very close relationship. He also had a history of relational problems in the workplace and was fired from his most recent job. In August 2008, he reported that he heard his wife's voice sometimes when she is not around. He also saw shadows but no objects. He reported that he thought about suicide a few weeks prior to the appointment but the thought passed quickly and there was no plan. He noted that he never wants to do anything and it seemed like he did not have a purpose. He reported that he went to jail 15 to 20 times for fighting and alcohol related incidents and had assaulted a police officer. There was no evidence of auditory or visual hallucinations during the interview. The assigned GAF was 55, which contemplates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. at 46-47 (1994). In February 2009, the Veteran reported that he had suicidal ideation several months prior. He was real depressed and did not care about doing anything or about whether he lived or not but had no plan to hurt himself. The assigned GAF was 50, which contemplates serious symptoms. Id. In May 2009, the Veteran was sleeping better. His wife was supportive but related that he "[f]lies off the handle with sons without reason." The assigned GAF was again 50. A February 2011 VA medical record indicated that the Veteran stopped drinking 20 years previously. He avoided social and recreational activities. On mental status examination, the Veteran denied hallucinations and delusions. His insight and judgment were fair. Abstract reasoning was intact and concrete. He felt very irritable, hateful and would get mad at his wife easily. He would get tense and scream and holler. When he got mad, he could become physically aggressive. The assigned GAF was 50, which contemplates serious symptoms. Id. In June 2011, the Veteran reported that there had been no significant change since the prior appointment. The assigned GAF was 55. The psychiatrist noted that the Veteran had residual symptoms but they were relatively stable. In November 2011, the Veteran related that he woke up one night from a dream and thought someone was trying to break into his home so he went out on the porch with his guns. The GAF score was again 55. The February 2012 VA examiner indicated that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, and noted that the Veteran's marked reclusiveness, irritability, and significantly impaired concentration would adversely impact his vocational pursuits. Additionally, the February 2012 VA examiner assigned a GAF of 50. The Board notes that under DSM-IV a GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). In October 2012, the Veteran reported that there was no significant change since he was seen in June 2011. He reported problems sleeping, sadness and irritability although not as bad as it used to be. He lacked motivation to do previous activities, such as working on his cars. He denied suicide attempts but admitted to occasional thoughts of suicide in the past. He reported that he stopped drinking 5 years previously and has not had a drink since. On mental status examination, his affect was appropriate to mood, which was appropriate and sad when talking of past history. Insight and judgment were assessed as fair. The assigned GAF was 55. In November 2012, the Veteran reported that he was experiencing more anxiety and irritability. Based on the symptomatology described above, the Board finds that the Veteran's overall disability picture more nearly approximates the criteria for a 70 percent rating, and that he should be granted a 70 percent rating for major depression for the entire time service connection has been in effect. See Fenderson. The evidence shows that the Veteran's symptoms include a tendency to isolate himself; anger; irritability; impaired impulse control; strained relationships with family members; depression; insomnia; poor concentration; anxiety; constricted affect; impaired insight, judgment and abstraction; occasional suicidal thoughts; and difficulty in adapting to stressful circumstances including work. While the GAF scores have varied between moderate and serious symptoms, the Board finds that the overall frequency, duration and severity of the symptoms manifested more nearly approximates occupational social impairment with deficiencies in most areas such as work, family relations, thinking and mood. The Veteran has reported that he lost a job in part due to his temper and that he has angry outbursts which can escalate to physical aggression. The evidence does not show that the symptoms have varied to such an extent that staged ratings are warranted for different periods of time. In sum, resolving doubt in the Veteran's favor, a 70 percent disability rating is warranted for the entire period of time that service connection has been in effect. The Board is not currently adjudicating whether the Veteran is entitled to an initial rating in excess of 70 percent. As explained below, this issue may not be considered until additional development is accomplished. ORDER A 70 percent rating for major depression is granted from the effective date of service connection. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court), found that a claim for a total disability rating based upon unemployability was part of the determination of an underlying increased rating claim and cited to Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) for the notion that a TDIU claim is raised once a Veteran submits evidence of a medical disability; makes a claim for the highest rating possible; and submits evidence of unemployability. See 38 C.F.R. § 3.155(a). The Board notes that in an August 2011 informal hearing presentation the Veteran's representative reported that the Veteran has asserted that he is unemployable due to his service-connected major depression. Accordingly, the Veteran's TDIU claim must be adjudicated by the RO. The Board notes that the development that will be accomplished in order to adjudicate the Veteran's TDIU claim is relevant to the Veteran's claim for an increased rating for major depression. The criteria for TDIU and the criteria for rating psychiatric disabilities both include reference to the Veteran's ability to engage in employment. Accordingly, the Veteran's claims for an initial rating in excess of 70 percent is inextricably intertwined with the Veteran's TDIU claim, and must be remanded for further consideration following the development of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a " significant impact " upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Veteran's Virtual VA file contains VA treatment records dated as recently as November 20, 2012. The Veteran's updated VA treatment records should be obtained. In addition, it is noted that the cover of Volume 1 of the claims folder indicates that a rehabilitation and education folder and a counseling folder were established for the Veteran in 1983. As these folders are relevant to the Veteran's education and vocational training, the RO should attempt to obtain them. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all VA treatment records dated from November 21, 2012 to present. 2. Issue a VCAA notice letter regarding the issue of entitlement to TDIU in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), 38 C.F.R. § 3.159 (2012). Request that the Veteran complete and return an updated TDIU application form so that he may submit his educational and occupational history. 3. Attempt to obtain the Veteran's VA rehabilitation and education folder and counseling folder. See cover of volume 1 of the claims folder. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. When the above actions have been accomplished, afford the Veteran an appropriate examination(s) to assess his ability/inability to work based on his service-connected disabilities (major depression and right knee disabilities). The VA examiner should review the Veteran's claims file. This should be indicated in the VA examination report. The VA examiner is requested to indicate the impact of the service-connected disabilities on the Veteran's ability to obtain and retain employment. In other words, is it at least as likely as not (a probability of 50 percent or greater) that the service-connected disabilities, either singly or in combination, are of sufficient severity that the Veteran is unable to obtain or retain substantially gainful employment, taking into consideration his previous work experience but not his age and nonservice-connected disabilities. The VA examiner should provide a complete rationale for all conclusions reached. If the Veteran's service-connected disabilities do not singly or cumulatively render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 5. Thereafter, readjudicate the issues that are in appellate status, including the Veteran's claim for an increased rating for his major depression and TDIU, and furnish the Veteran and his representative a supplemental statement of the case for all claims that remain less than fully favorable to the Veteran. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs