Citation Nr: 1329036 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-16 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 50 percent for major depressive disorder (MDD). 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran had active service from February 1962 to January 1964. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2008, a statement of the case was issued in March 2010, and a substantive appeal was received in April 2010. Please note 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). The matters of entitlement to service connection for digestive disorder, asthma, and kidney stones, a rating claimed based on clear and unmistakable error (CUE), and entitlement to TDIU are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected major depressive disorder is manifested by symptoms which result in occupational and social impairment, with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 50 percent for the Veteran's service-connected major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.130, and Code 9434 REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2008. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained VA and private treatment records, assisted the Veteran in obtaining evidence, and afforded the Veteran VA examinations in April 2008, July 2009, and December 2011. All known and available records relevant to the matter of an increased rating have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision as to the matter of an increased rating at this time. Legal Criteria The present appeal involves the Veteran's claim that the severity of his service-connected MDD warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected major depressive disorder has been rated by the RO under the provisions of Diagnostic Code (Code) 9434 Under the criteria for Code 9434, 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. A 70 percent rating is assigned 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 schedular rating is warranted when 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; memory loss for names of close relative, own occupation or own name. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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, has some meaningful interpersonal relationships. A GAF score of 51-60 indicates 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). A GAF score of 41-50 indicates 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). A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The Board recognizes that the Court in Mauerhan v. Principi, 16 Vet. App. 436 (2002), stated that the symptoms listed in VA's general rating formula for mental disorders is 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. However, the Court further appears to have acknowledged that without those examples, differentiating between evaluations would be extremely ambiguous. Id. at 442. Factual Background On April 2008 VA mental disorders examination, the Veteran reported he was treated by the San Juan VA Medical Center "two or three times due to getting worse of my nerves." He reported trouble sleeping and nervousness "on a daily basis, mild." An examination revealed unremarkable psychomotor activity, spontaneous speech, a cooperative attitude, and constricted affect. His mood was "nervous." He was oriented in all spheres and noted to understand the outcome of his behavior. Sleep impairment was noted; however no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal and suicidal thoughts were noted. His impulse control was good and there were no episodes of violence. The examiner indicated that he was able to maintain minimum personal hygiene and had no problem with activities of daily living. A GAF score of 70 was provided. The examiner stated that there was not total occupational and social impairment due to his MDD and that the signs and symptoms of such do not result in deficiencies in the Veteran's judgment, thinking, family relations, work or school. The examiner also indicated that there was no reduced reliability and productivity due to such symptoms. On July 2009 VA mental disorders examination, the examiner noted that the Veteran's speech was unremarkable, his attitude toward the examiner was cooperative, and his affect was appropriate. His mood was noted to be anxious. He was found oriented to person, time, and place. His thought processes and thought content were unremarkable. The examiner noted that the Veteran did not experience delusions or hallucinations and did understand the outcome of his behavior. Additionally, it was noted that he did not have inappropriate behavior, obsessive/ritualistic behavior, panic attacks, homicidal or suicidal thoughts, and had no episodes of violence. He also had good impulse control. Sleep impairment was noted. His memory was normal and the examiner noted that he was able to maintain a minimum personal hygiene and had no problem with activities of daily living. A GAF score of 60 was provided. The examiner stated that there is not total occupational and social impairment due to his MDD and that the signs and symptoms of such do not result in deficiencies in his judgment, thinking, family relations, work, mood or school. However, the examiner did note that the symptoms of his MDD do result in reduced reliability and productivity. A November 2009 VA psychiatry note indicated the Veteran reported eating and sleeping well. He denied suicidal and homicidal ideation and auditory/visual hallucinations. On mental status examination, it was noted that he had adequate hygiene, was appropriately dressed, and was cooperative. His thought processes were coherent and logical and his thought content was normal with no suicidal ideas or plan. His mood was noted to be euthymic and affect was broad. There was no abnormality of perception and he was oriented in all spheres. His memory was intact, abstraction was normal, and his judgment and insight were good. A GAF score of 70 was provided. In April 2010, the Veteran submitted a statement from Dr. Ortiz, a private physician. She stated that the Veteran presented with continuous sleep problems, he gets irritated and anxious, and he cannot handle stress or react appropriately to his physical and social environment. She noted he presented with a depressed mood and has marked decreased interest and pleasure in most of his usual activities. She stated that he has fatigue or low energy nearly every day in addition to concentration and memory problems. Dr. Ortiz noted that he presented frustration, has a sensation of worthlessness, feels sad and has frequent crying spells. She noted that the Veteran isolated himself and "had two previous hospitalizations due to suicidal attempts; he has frequent suicidal thoughts." Dr. Ortiz indicated that the Veteran is not able "to perform the duties of full time work..." stating that he "presents occupational and social impairment with deficiencies at work, family relations, thinking, and mood due to symptoms of suicidal ideation, almost constant depression, impaired impulse control and difficulty in adapting to stressful circumstances." Dr. Ortiz further noted that the Veteran's psychiatric symptoms "has aggravated." The Veteran was afforded another VA mental disorders examination in December 2011. On examination, symptoms of depressed mood and chronic sleep impairment were noted. The Veteran was not found to have anxiety, suspiciousness, panic attacks that occur weekly or less often, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, mild memory loss, impairment of short and long-term memory, memory loss for names of close relatives, own occupation, or own name, or flattened affect. He was further found not to have circumstantial, circumlocutory or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstracted thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, impaired impulse control, spatial disorientation, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, or disorientation to time or place. The examiner noted that although a mental disorder has been formally diagnosed, the symptoms of such are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A GAF score of 65-70 was provided. In rendering his conclusion, the examiner noted a review of the Veteran's claims file, to include the private opinion from Dr. Ortiz, dated April 2010. The examiner noted that the Veteran was seen by Dr. Ortiz only once and stated that besides the report from Dr. Ortiz, there is no current evidence of psychiatric hospitalizations or visits to Psychiatric Intervention center since his last evaluation. Analysis Following review of the evidence of record, the Board concludes that an evaluation of 50 percent, but no more, is warranted for MDD throughout the appeal period. The Board observes that a higher rating is not warranted because the evidence of record does not demonstrate that the Veteran's symptomatology more nearly approximates a 70 percent or higher evaluation. In this regard, the evidence of record does not show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board is particularly persuaded by the consistency of the findings from four separate VA examinations, conducted over several years and by four different examiners. These examiners determined that the Veteran was oriented in all spheres and exhibited no inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. His impulse control was noted to be good and there were no episodes of violence reported. On April 2008 and July 2009 VA examination reports, the examiner specifically noted that the signs and symptoms of his MDD do not result in deficiencies in judgment, thinking, family relations, work, mood or school. Further, the December 2011 VA examiner noted that the Veteran's symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. There was also no evidence of neglect of personal appearance and hygiene. Additionally, GAF scores between 60-70 were provided. These scores are indicative of mild symptomatology (i.e., some difficulty in social, occupational, or school functioning, but generally functioning pretty well; has some meaningful interpersonal relationships). The Board acknowledges the April 2010 private opinion from Dr. Ortiz, which presents a more severe psychiatric picture than is reflected by the other evidence of record; however, the Board finds this opinion less probative. In this regard, the Board notes that Dr. Ortiz did not indicate she was the Veteran's treating physician, but instead noted that he "presented" to her with the symptoms as described above, which suggests that she only saw the Veteran once. Additionally, Dr. Ortiz does not provide a basis or a citation to the factual record to support her conclusions that he suffers from such serious symptomatology. In response to her conclusion that the Veterans symptoms had worsened, another VA examination was obtained in December 2011, at which time the VA examiner acknowledged this private opinion, but stated that Dr. Ortiz only saw the Veteran once and there was no current evidence of psychiatric hospitalizations or treatment since his last evaluation. Even considering the findings of Dr. Ortiz, the December 2011 VA examiner determined that the Veteran's symptoms are not severe enough to interfere with occupational and social functioning. As this examiner reviewed and considered the "positive" evidence of record and provided a thorough examination of the Veteran, which included rendering a GAF score, the Board finds this examination report more probative and persuasive. Here, the probative evidence of record, including the consistent findings from four VA examination reports, demonstrates that the Veteran has sleep impairment, nervousness/anxiousness, and a depressed mood. These symptoms are encompassed by the 50 percent rating criteria. Notably, the evidence does not show that the Veteran suffers from the types of symptoms contemplated by a 50 percent rating, including circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory, impaired judgment, or impaired abstract thinking. Thus, the Board concludes that the evidence is against a finding that the criteria for a rating in excess of 50 percent have been met. Moreover, the record does not establish that the rating criteria are inadequate for rating the Veteran's MDD such that an extraschedular rating is warranted. The Veteran's disability is manifested by impairment in social and occupational functioning, specifically: sleep impairment, nervousness/anxiousness, and a depressed mood. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. 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). The matter of a TDIU rating is addressed in the remand below. ORDER Entitlement to a rating in excess of 50 percent for service-connected major depressive disorder is not warranted. To this extent, the appeal is denied. REMAND In an August 2013 brief, the Veteran's representative indicated that the Veteran acquired a digestive disorder (irritable bowel syndrome) and asthma in service, in addition to developing kidney stones in service. The representative alternatively suggested that such digestive disorder and asthma were aggravated by his service-connected psychiatric disorder. Additionally, the Veteran's representative appears to have raised a claim for clear and unmistakable error (CUE), stating that "the Veteran clearly and unmistakably merited a 100% rating for his mental disorder beginning no later than the last day of full-time substantially gainful employment in June 1982." These statements appear to be claims of service connection for a digestive disorder, asthma, and kidney stones, in addition to a claim for CUE. As the eventual determination on these new claims might have an impact on the individual unemployability issue, the claims are intertwined. Action on the individual unemployability issue must therefore be deferred pending development and adjudication of the new claims raised by the Veteran. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should furnish the Veteran with appropriate VCAA notice in connection with the new service connection claims and in connection with the CUE claim. 2. The RO should then develop the newly raised claims, including obtaining all identified medical records, and scheduling VA examination(s) with nexus opinion(s) if necessary. 3. The RO should then adjudicate the claims of service connection and of CUE. The Veteran should be notified of the decisions and furnished notice of appellate rights and procedures, including the need to file a timely notice of disagreement if he wished to appeal form that determination. 4. After completion of the above, the RO should review the expanded record and readjudicate the individual unemployability claim. The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs