Citation Nr: 1331212 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-26 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating higher than 30 percent for service-connected major depressive disorder. 2. Entitlement to total disability rating for compensation based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to a TDIU was not certified for appeal. When there is when evidence of unemployability, however, that is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the September 2009 VA psychiatric examination reports shows that the Veteran is unemployed and the Veteran reports that he is unable to work due to his psychiatric disability. As the evidence suggests that he may be unemployable due to symptoms of his service-connected psychiatric disability the issue of entitlement to a TDIU must be considered. As such, the Board has identified the issues as stated on the title page. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran's psychiatric disability has been productive of depressed mood, suicidal ideation, chronic sleep impairment (insomnia), poor energy, and impaired concentration throughout the appeal period; however, the preponderance of the evidence shows that the Veteran's PTSD has not been productive of total social and industrial impairment at any time during the appeal period. CONCLUSION OF LAW The criteria for an initial disability rating throughout the appeal period of 70 percent, for major depressive disorder are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's duty to notify and assist As this is an appeal arising from the initial grant of service connection, the notice that was provided to the Veteran in July 2009 before service connection was granted was legally sufficient and no further notice under the VCAA is necessary. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). All pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. VA has associated with the claims file the service treatment records. This Veteran was also afforded VA examination in September 2009 and he submitted his own lay evidence regarding his symptoms and the Board finds that the evidence is sufficient for a decision in this matter. Significantly, the Board observes that the veteran does not report that the condition has worsened since that time, and thus a remand is not required solely due to the passage of time since the September 2009 VA psychiatric examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal. 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); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. The Board will therefore review the merits of the Veteran's claim, de novo. Merits In a rating decision in November 2009, the RO granted service connection for major depressive disorder and assigned a 30 percent rating effective September 1, 2009. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's psychiatric disorder has been evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, throughout the appeal period. Under the provisions of 38 C.F.R. § 4.130, a 30 percent rating is warranted for 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). Id. The criteria for the next higher rating of 50 percent are 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. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The highest rating of 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Global assessment of functioning (GAF) scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, are also useful indicators of the severity of a mental disorder. See DSM-IV. GAF scores between 51 to 60 are indicative of 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). GAF scores between 41 to 50 reflect 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 examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned. The percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. 38 C.F.R. § 4.126. Analysis The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted be discussed in detail. Rather, the Board's analysis below will focus specifically on the evidence needed to substantiate his claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Military records confirm that the Veteran was diagnosed with major depressive disorder, placed on limited duty status, and treated with psychiatric disability medication in August 2005. In August 2009 he separated from active duty service. On VA examination in September 2009, the Veteran complained of poor energy and appetite, depressed mood, sleep impairment, and impaired concentration. Affect was constricted and mood was "not too good"; but speech was clear, spontaneous and coherent, and psychomotor activity was unremarkable. Thought processes and content were also unremarkable; and there were no delusions, hallucinations, or perceptual disturbances. The GAF score was 60. The Board notes that during the 2009 VA examination the Veteran denied any suicidal or homicidal ideation; however, in 2012 he acknowledged having suicidal ideation, and said he had previously denied such thoughts because he did not want to hurt his chances of getting a government job after service. The Board finds no reason to doubt the veracity of any of this lay evidence, particularly as military records document suicidal ideation during service, and note that the Veteran was on psychotropic medications. Thus, notwithstanding a found GAF of 60 during the September 2009 examination, when interpreted in light of the whole recorded history and reconciling the various reports into a consistent picture, the Board finds that the evidence of record, including active duty records, portrays occupational and social impairment with deficiencies in most areas, due to such symptoms as suicidal ideation, sleep impairment, and near-continuous depression affecting ability to function effectively. 38 C.F.R. §§ 4.3, 4.7. The criteria for an initial rating of 70 percent effective throughout the appeal period are therefore met. However, based on all of the medical and lay evidence of record, the Veteran has been fully oriented and self sufficient at all times during the appeal period. Further, although his psychiatric disability has been productive of social impairment, including his separation and subsequent divorce, the evidence shows that the maintains a positive relationship with his son, that his psychiatric disability is not productive of violence and that he has no impairment in his activities of daily living. Accordingly, the Board finds that the preponderance of the evidence shows that the disability picture for the Veteran's psychiatric disability does not more nearly approximate the criteria for a 100 percent schedular rating under Diagnostic Code Diagnostic Code 9434 at any time during the appeal. Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's psychiatric disability, which is productive of severe social impairment and suicidal ideation, as well as significant impairment on his ability to work. As such, the manifestations of his psychiatric disability are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's psychiatric disability and referral for consideration of extraschedular rating is not warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, an initial disability rating throughout the appeal period of 70 percent for major depressive disorder is granted. REMAND In August 2009 the Veteran separated from active duty service, and in September 2009 he was accorded a VA psychiatric examination, which reflects that the Veteran was unemployed but not retired. In addition, the Veteran reports that he is unable to work secondary to his psychiatric disability. See Rice v, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation). Remand for adjudication of this issue is warranted. Accordingly, the case is REMANDED for the following action: 1. Send VCAA notice to the Veteran that apprises him of the information and evidence needed to substantiate his claim for total disability rating for compensation based on individual unemployability (TDIU). 2. Notify the Veteran that he may submit lay statements from himself as well as from other individuals who have first-hand knowledge of the impact of his psychiatric disability on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After associating all outstanding records with the claims file, schedule the Veteran for a VA examination, to be conducted, if possible, by a vocational specialist, to ascertain the impact of his psychiatric disability on his employability. The examiner must review the claims file in conjunction with the examination, and must interview the Veteran during the examination. Thereafter, taking into account the individual Veteran's education, training, and work history, the examiner must opine as to whether, without regard to the veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his psychiatric disability renders him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions must set forth in a legible report. 4. After completion of all of the above and any other development deemed necessary, adjudicate the claim for TDIU. If this benefit is denied, issue a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs