Citation Nr: 1331633	
Decision Date: 10/01/13    Archive Date: 10/07/13

DOCKET NO.  00-08 286	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for atypical affective disorder, for the period from September 16, 1992 through August 7, 2002.

2.  Entitlement to a rating in excess of 50 percent for atypical affective disorder, from August 8, 2002.


REPRESENTATION

Appellant represented by:	Daniel P. Graham, Attorney


ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Counsel


INTRODUCTION

The Veteran served on active duty from May 1988 to February 1991.

The Veteran was denied service connection for a psychiatric disability in a January 1993 rating decision.  He appealed the denial of his claim, and in a July 1999 decision, the Board granted the Veteran's claim.

This appeal to the Board of Veterans' Appeals (Board) arose from an August 1999 rating decision in which the RO, in implementing the Board's July 1999 decision, granted service connection and assigned an initial 10 percent rating for atypical affective disorder effective September 16, 1992.  In September 1999, the Veteran filed a notice of disagreement with respect to the rating assigned.  A statement of the case (SOC) was issued in March 2000, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2000.

In October 2002, the RO increased the rating for atypical affective disorder from 10 percent to 30 percent, effective August 8, 2002. 

In July 2004, a Deputy Vice-Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket pursuant to 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2004).

In August 2004, the Board awarded higher ratings for atypical affective disorder-30 percent from January 27, 1997 and 50 percent from August 8, 2002-but denied any higher ratings.  The Veteran appealed the Board's August 2004 decision to the United States Court of Appeals for Veterans Claims (Court), and, in May 2007, the Court affirmed the Board's decision.  The Veteran appealed the Court's May 2007 decision to the United Stated Court of Appeals for the Federal Circuit (Federal Court).  In February 2009, the Federal Court reversed the Court's May 2007 decision, and remanded the matters on appeal to the Court for further proceedings consistent with the Court's decision.

In January 2010, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development.  After accomplishing the requested action, the RO continued the denial of the claims for higher ratings (as reflected in a February 2011 supplemental SOC (SSOC)), and returned these matters to the Board for further appellate consideration.  

In July 2011, the Board awarded a higher, initial rating of 30 percent for the period prior to January 26, 1997, but denied ratings in excess of 30 percent for the period from January 27, 1997 to August 7, 2002, and in excess of 50 percent for the period from August 8, 2002.  The Veteran appealed again and in November 2012, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision, and remanding the matters of higher ratings at each stage to the Board.  

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims.  A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

In April 2013, the Veteran submitted additional evidence directly to the Board with a waiver of initial RO review. 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished.

2.  For the period from September 16, 1992 through November 7, 1996, the Veteran's psychiatric symptoms primarily included a depressed mood, irritability, low frustration tolerance, family conflicts, episodic suicidal ideation and anxiety; overall, these symptoms suggest considerable industrial impairment.

3.  For the period from November 7, 1996 through August 7, 2002, the Veteran' s psychiatric symptoms primarily included depressed mood, irritability, family conflicts, episodic suicidal ideation, and some anxiety and social isolation; overall, these symptoms suggest occupational and social impairment with reduced reliability and productivity.

4.  Since August 8, 2002, the Veteran's psychiatric symptoms have primarily included constricted affect, depression, anxiety, anger, irritability, limited coping skills, and difficulty with interpersonal relationship with his wife and children; overall, these symptoms are indicative of no more than occupational and social impairment with reduced reliability and productivity.

5.  The schedular criteria are adequate to rate the Veteran's atypical affective disorder at all times pertinent to this appeal.


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial 50 percent rating for atypical affective disorder, from September 16, 1992, through August 7, 2002, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126(a), 4.130 (2012), 4.132 (1996), Diagnostic Code 9410 (1996 & 2012).

2.  The criteria for a rating in excess of 50 percent for atypical affective disorder are not met at any point pertinent to the appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126(a) (2012), 4.130, Diagnostic Code 9410 (2006 & 2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing.  See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R.                  § 3.159(b)(1).

The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part.  See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008).  Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession.

In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC).  Id.; Pelegrini, 18 Vet. App. at 112.  See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Id.

In this appeal, April 2001 and February 2004 letters provided notice as to what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. These letters also specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect).

After the Veteran's disagreement with the initial rating assigned following the award of service connection , the March 2000 SOC set forth the criteria for higher ratings for psychiatric disability.  Although the form and timing of this notice suffices, in part, for Dingess/Hartman, the February 2011 supplemental SOC (SSOC) reflects readjudication of the claim, curing any potential prejudice as to the timing of the notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided.  Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, private treatment records and the reports of numerous VA examinations.  The Veteran has submitted additional service hospital records from Tripler Army Hospital.  Also of record and considered in connection with the appeal are the various statements submitted by the Veteran and by his representative, on his behalf.  The Board also finds that no additional RO action to further develop the record in connection with either claim, prior to appellate consideration, is required.

The Board acknowledges the Veteran's contention that the March 2010 VA examination was incomplete in that the examiner only addressed the severity of the Veteran's disability from 2002 to the present.  The Veteran argues that the examiner's failure to provide a retrospective opinion regarding the severity of the Veteran's disability prior to 2002 is contrary to the Federal Circuit's February 2009 decision.  However, the Board has reviewed the Federal Circuit decision and notes that it instructs that VA must review all of the relevant records, including service hospital records not previously obtained from Tripler Army Hospital.  The February 2009 Federal Circuit opinion did not require that a VA examiner review the evidence.  The Board has reviewed the evidence of record and finds that the March 2010 VA examination report is adequate as the examiner reviewed the Veteran's history of his illness and claims file, including service psychiatric treatment, and noted that he had received psychiatric treatment on and off since 1990.  Moreover, the remainder of the evidence of record for the period prior to 2002 is adequate upon which to base a rating decision.  Specifically, the Veteran has provided the outstanding service hospital records discussed in the Federal Circuit opinion and the same have been reviewed in reaching the decisions herein.  A remand for a retrospective opinion is, thus, not required, and would unduly delay resolution of the claim.  

The Board also acknowledges the Veteran's contention that a medical opinion is necessary to determine whether particular psychiatric symptoms support the assignment of various Global Assessment of Functioning (GAF) scores.  The Board has considered the Veteran's argument that it is a violation under Colvin v. Derwinski, 1 Vet. App. 171 (1991) for the Board to review the symptoms identified and opine as to whether the symptoms support a particular GAF score.  The Board disagrees.  In the Colvin case, the underlying Board decision involved the Board denying reopening a claim for service connection for multiple sclerosis even though there were medical opinions that the Veteran had manifested multiple sclerosis within the seven-year presumptive period.  The Board essentially rejected the medical opinions.  The Court held that the Board "must consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a medical opinion."  Id. at 172.  

Here, the Board is not applying its own medical judgment.  The Board is merely identifying the symptoms listed by the VA examiner, identifying the level of severity indicated by the assigned GAF score, and applying those symptoms and GAF scores to the rating criteria.  It is within the Board's purview to note that a particular level of severity indicated by a GAF score and the identified symptoms may or may not correlate to the level of severity of symptoms listed in the rating criteria.  The Board need not exercise its own medical opinion to draw conclusions as to the correlation between particular symptoms and GAF scores and/or disability rating criteria.  Thus, a remand for interpretation of GAF scores is not necessary, and would unduly delay resolution of the claim. 

In summary, the duties imposed by the VCAA have been considered and satisfied.  The Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture.  See Mayfield, 20 Vet. App. at 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error).  See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, in Fenderson, the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson, 12 Vet. App. at 126.  

Here, as the RO has already assigned staged ratings for the Veteran's atypical affective disorder, the Board will consider the propriety of those ratings, as well as whether any further staged rating of the disability is warranted.

The RO assigned the ratings for the Veteran's atypical affect disorder under Diagnostic Code 9410.  However, the criteria for rating psychiatric disabilities other than eating disorders are actually set forth in a general rating formula.  See 38 C.F.R. § 4.130.

Initially, the Board notes that VA revised the criteria for diagnosing and evaluating psychiatric disabilities, effective November 7, 1996.  See 38 C.F.R. § 4.130, Diagnostic Code series 9200, 9300, 9400 and 9500 (2003).  As there is no indication that the revised criteria are intended to have retroactive effect, the Board has the duty to adjudicate the claim only under the former criteria for any period prior to the effective date of the new diagnostic codes, and to consider the criteria for the period beginning on the effective date of the new provisions.  See Wanner v. Principi, 17 Vet. App. 4, 9 (2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).  See also VAOPGCPREC 3-2000 (2000) and 7-2003 (2003).  The retroactive reach of the revised regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. 

Under the general rating criteria in effect prior to November 7, 1996, the Veteran's psychiatric disability was rated under Diagnostic Code 9410.  The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability.  Two of the most import determinants of disability are time lost from gainful work and decrease in work efficiency.  38 C.F.R. § 4.130 (1996).  There are additional guidelines for evaluating psychiatric disability, i.e., social impairment per se will not be used as the sole basis for any specific percentage evaluation, but is of value only in substantiating the degree of disability based on all of the findings.  38 C.F.R. § 4.132, Note (1) (1996).  Furthermore, social inadaptability is to be evaluated only as it affects industrial adaptability.  38 C.F.R. § 4.129 (1996).

Under 38 C.F.R. § 4.132, if there is no industrial impairment, although neurotic symptoms which may adversely affect relationships with others, a noncompensable evaluated is warranted.  For "mild" social and industrial impairment, a 10 percent rating is warranted.  For "definite" industrial impairment, a 30 percent rating is warranted [Parenthetically, the term definite is to be construed as "distinct, unambiguous, and moderately large in degree."  VAOPGCPREC 9-93 (1993)].  For "considerable" industrial impairment, a 50 percent rating is warranted.  For "severe" industrial impairment, a 70 percent rating is warranted.  Id.

To warrant a 100 percent evaluation, the attitudes of all contacts expect the most intimate must have been so adversely affected as to result in virtual isolation in the community; or there must have been totally incapacitating symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or, as a result of the psychiatric disability, the individual must have been unable to obtain or retain employment.  Id.  The Board notes that these three criteria provide three independent bases for granting a 100 percent disability evaluation.  See Johnson v. Brown, 7 Vet. App. 94, 97 (1994).

Under the revised general rating criteria (in effect since November 7, 1996), a 10 percent rating is assigned where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.  A 30 percent rating is assigned when 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, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130 (2012).

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.  Id.

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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.  Id.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.  Id.

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness."  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

In evaluating the disability under consideration, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating.  The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating for atypical affective disorder.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

As indicated below, the Board notes that, in addition to service-connected atypical affective disorder, the medical evidence reflects diagnoses of other psychiatric disorders.  Where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998).  As there is no indication here that it is possible to distinguish the symptoms from the Veteran's various psychiatric disorders, the Board has considered all of his psychiatric symptoms in evaluating his service-connected atypical affective disorder.

A. Period from September 16, 1992, through August 7, 2002

The record reflects that the Veteran was treated for psychiatric difficulties during service.  Service treatment records reflect that the Veteran was hospitalized in December 1990 after he went "berserk" and tried to commit suicide.  During his in-patient treatment, in December 1990, the Veteran reported that he realized the suicide attempt was foolish and that he was no longer suicidal.  He was diagnosed with an adjustment disorder with mixed emotional features during his in-patient treatment in December 1990 - January 1991.  One January 1991 service treatment record noted that the adjustment disorder was "resolved."  In January 1991, a service psychiatrist recommended that the Veteran be separated from service because he was unsuitable for service due to a severe personality disorder that rendered him a danger to himself and others.  Significantly, a February 1991 Separation Examination noted a normal psychiatric evaluation.  His February 1991 Report of Medical History also noted "no" suicide attempts. However, the Veteran's DD-214 includes the reason listed for separation was "other physical/mental conditions: personality disorders."  He was discharged from service in February 1991. 

The report of a May 1991 St. Mary's Hospital emergency room record reflects that the Veteran ingested seven flexeril for severe back pain.  The record notes that a friend questioned the possibility that the Veteran had attempted suicide.

On VA examination in December 1992, it was noted that the Veteran was employed, but had difficulties at work due to anger and low stress tolerance.  He indicated that he was not depressed.  On examination, the Veteran displayed low frustration tolerance, and was easily provoked to irritability.  There was no evidence of hallucinations, delusions, or psychotic phenomena.  Memory was intact and judgment was fair.  The examiner described the Veteran as having no insight.  A diagnosis of atypical affective disorder was assigned.

Treatment records from the mental health clinic at St. Mary's Hospital dated from April 1993 to October 1994 reflect the Veteran's complaints of depression related to intense and ongoing conflict with his live-in girlfriend, as well as ongoing conflict with his family.  In particular, an October 1994 discharge summary notes a diagnosis of dysthymia and personality disorder, not otherwise specified, with dependent and borderline features.  The clinician noted that there had been some improvement in his overall mood and quality of relationship with his girlfriend during the course of therapy.

A report from the Veteran's employer notes that he walked off the job in August 1994.  The Veteran indicated that he walked off because he was angry and was holding a pair of scissors, not knowing what he might do.

A February 1996 Notice of Determination from another employer notes that the Veteran quit his job without good cause.

On VA psychiatric evaluation in November 1996, the Veteran reported that he had held a few jobs since service, but that he left all prior jobs to make more money, not because of work difficulties.  He was working two jobs at the time of examination. The Veteran also stated that he got along well with others, and denied any interpersonal difficulty except with his immediate family members.  He also reported that he had been in counseling for the previous two years.  The Veteran denied symptoms of depressed mood, suicidal thoughts, anxiety, feeling of failing, or appetite or sleep disturbances.  He also denied episodes of violence, and expressed that he believed that counseling was helping him with anger control.  On mental status examination, the examiner found no evidence of delusional or psychotic thinking.  He also found that the Veteran did not meet the criteria for affective disorder or personality disorder.  The examiner explained that the episodes that led to the Veteran's discharge were best understood as a single episode (now resolved) of severe adjustment disorder with mixed disturbance of emotions and conduct in the context of long-standing patterns of ineffective coping with frustration and anger.

On VA psychiatric evaluation also in January 1997, the Veteran reported that he was having marriage difficulties and that his marriage was "breaking up."  He indicated that he became angry, irritable, and depressed at home.  He tended to think about suicide on an episodic basis, and was experiencing difficulty coping with his two jobs.  Upon mental status examination, the Veteran was labile, as he was initially uncomfortable, angry, and irritability, and then cooperative and smiling.  He was not hallucinative, delusional, or otherwise psychotic.  His mood and affect were labile and varied in rapid swings from anger and irritability to depression to a state of well-being.  The Veteran also alluded to episodic suicidal ideation but with no plan.  The Veteran expressed past, but not current, homicidal ideation.  The examiner noted that the Veteran's memory was intact, judgment was fair, and that insight was superficial, at best.  A diagnosis of atypical affective disorder manifested by irritability, depression, and labile affect was assigned.  A GAF score of 46 was also noted.

An August 1998 report from Crossroads Counseling notes that the Veteran was in therapy from October 1996 to June 1997.  The counselor reported that the Veteran had difficulty with relationships, particularly within his own family.  She also described the Veteran as depressed, lacking confidence, and having difficulty with problem solving and making decisions.  The counselor further noted that the Veteran's frustration resulted in impulsive and angry outbursts.  She noted that the Veteran underwent counseling to improve his coping skills for his family and work life.  She expressed that she thought the Veteran had an underlying dysthymia condition.

On VA examination in December 1998, the Veteran reported that he was still married, but had been experiencing difficulties in his marriage as recently as 1997. With respect to work, he indicated that he was still working in pool assembly and got along well with his boss and coworkers.  He also denied problems with his previous work positions.  On mental status examination, the Veteran's speech and thoughts were logical and coherent. His affect was angry.  The Veteran denied suicidal or homicidal ideation as well as hallucinations or delusions.  Memory and concentration were normal, but insight and judgment were poor.  The Veteran denied symptoms of depression and anxiety, as well as obsessive-compulsive behavior or symptoms of panic disorder.  The examiner did not provide a psychiatric diagnosis, as he found no symptoms of an emotional or mental disorder. A GAF score of 80 was assigned.
Considering the evidence of record in light of the former criteria and, since November 7, 1996, the revised criteria, the Board findings that a 50 percent rating is warranted for the period prior to August 8, 2002.  

Collectively, the aforementioned medical evidence reflects that, during this period, the Veteran's psychiatric symptoms primarily included irritability, low frustration tolerance, periodic suicidal ideation, past homicidal ideation, work conflicts, poor insight and judgment, depression, anger, and interpersonal conflicts.  While the Veteran has not demonstrated all of the symptoms listed in the rating formula as indicative of a 50 percent rating, and there is medical evidence-in particular the Tripler Hospital records showing treatment for a suicide attempt shortly before service discharge, the December 1992 VA examination report showing no insight and difficulties with work, anger and irritability, the January 1997 VA psychiatric evaluation with the GAF score of 46, and the December 1998 VA examination indicating interpersonal conflicts, poor insight and poor judgment.  The Board finds that the Veteran's symptoms, when considered with his work record, are consistent with a 50 percent rating under either the former criteria (reflecting considerable industrial impairment) or, since November 7, 1996, the revised criteria (reflecting social impairment with reduced reliability and productivity) consistent with a 50 percent, rather than a 30 percent rating. 

Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his psychiatric disorder more nearly approximated the criteria for a 50 percent, but no higher, rating for the period prior to August 8, 2002.  See 38 C.F.R. §§ 4.3 4.7.

Specifically as regards the GAFs assigned during this period-46 and 80-according  to the DSM-IV, GAF scores 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).  GAF scores from 71 to 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). 

The Board notes that the GAF scores during this period are reflective of a wide array (and severity) of symptoms.  Although the January 1997 assignment of a GAF of 46 reflects serious symptomatology, the January 1997 VA evaluation report lists symptoms that support a finding of overall moderate symptomatology, including anger, irritability, difficulty coping with two jobs, varied affect, superficial insight, episodic suicidal ideation, but had intact memory, fair judgment, no reports of obsessive rituals, no unprovoked irritability with violence, no speech symptoms, no reports of near-continuous panic or depression, no special disorientation, no neglect of personal appearance and hygiene, no inability to establish or maintain effective relationships.  All of these factors are consistent with no more than the 50 percent disability rating.  Similarly, although the December 1998 assignment of a GAF of 80 would appear to support only a finding of mild symptomatology, the December 1998 VA examination report listed symptoms consistent with the 50 percent disability rating, including poor insight and poor judgment.  

The Board has also considered the April 2013 statement of the Veteran's wife concerning her observation of the Veteran from the time of service discharge that he "came home and could not hold down a job, he got arrested, and he tried to take his life several times after."  She also indicated that he had been prescribed medication in service but was not sent home with any instructions and essentially went off of the medication "cold turkey."  She attached internet research regarding medications for Haldol and Lorazepam which note that a patient should taper off of Haldol rather than stop medication abruptly.  The internet research also noted that symptoms of Haldol withdrawal included return of psychotic symptoms.   

Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds that the assignment of an initial 50 percent, but no higher, rating is warranted.  The Board acknowledges the prior grant an initial 30 percent disability rating but no higher, for the period prior to January 27, 1997 and denial of a rating in excess of 30 percent for the period from January 27, 1997 through August 7, 2002.  However, reviewing the evidence previously of record, with the addition of the service hospital records as well as lay statements added to the record since the prior decision, and affording the Veteran all benefit of the doubt and finds that the Veteran's psychiatric disability warrants an initial 50 percent but no higher disability rating for the period prior to August 8, 2002. 

At no point prior to August 8, 2002, did the Veteran's psychiatric disability meet the criteria for at least the next higher, 70 percent rating.  As noted above, under the General Rating Formula in effect prior to November 7, 1996, a 70 percent rating is assigned for severe industrial impairment.  In addition, under the General Rating Formula in effect as of November 7, 1996, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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.  

The Board acknowledges that the evidence indicates periodic suicidal ideation; no other symptoms of the type, and frequency and/or severity (as appropriate) of such symptoms as those listed in the criteria for the 70 percent disability rating under either the former or revised criteria have been shown.  For example, the objective medical evidence does not show such symptoms as obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near continuous panic attacks, spatial disorientation, neglect of personal hygiene, difficulty in adapting to stressful circumstances (including work or a work-like setting), or an inability to establish and maintain effective relationships that are characteristic of the 70 percent rating under the revised General Rating Formula.  In fact, during this period, the Veteran was able to work two jobs.  Although he experienced some interpersonal conflicts with his wife, boss, and coworkers, the evidence does not demonstrate that he was unable to establish and maintain effective relationships.  Further, although the evidence notes that he was depressed on numerous occasions, the evidence does not demonstrate that his depression affected his ability to function independently, appropriately, and effectively.  

In addition, a higher, 70 percent rating, is not warranted under the former diagnostic criteria in effect prior to November 7, 1996, as neither lay evidence nor medical evidence during that time period reflects severe impairment in establishing or maintaining effective or favorable relationships, or psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain or retain employment.  Moreover, the Veteran reported being employed in December 1992 and that he was working two jobs in November 1996.  As detailed above, although he experienced some interpersonal conflicts with his wife, boss, and coworkers, he also reported getting along well with others and denied interpersonal difficulties expect with his immediate family members.  Again, the Veteran maintained relationships and obtained employment.

The Board acknowledges the Veteran's (and his attorney's) expressed belief that the Veteran's symptoms for the period prior to August 8, 2002, are of such severity as to warrant a higher rating.  The Board emphasizes, however, that disability ratings are assigned by application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record.  Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than any lay assessment of the severity of his disabilities.  Moreover, his subjective complaints have been considered in the evaluation of the disability.

Based on the foregoing, the Board finds that a 50 percent, but no higher disability rating is warranted for the period prior to August 8, 2002.  As the criteria for the next higher, 70 percent, rating are not met, it follows that the criteria for an even higher rating (100 percent) likewise are not met.

      B.  Period from August 8, 2002

The relevant medical evidence describing the severity of the Veteran's service-connected atypical affective disorder during this period includes the report of a VA examination conducted on August 8, 2002.  The Veteran's subjective complaints at that time consisted of anxiety, anger, and difficulties at home with his wife.  He reported that he had been arrested in 1998 for punching his stepdaughter, and this his anger and anxiety had gotten worse.  He reported that he was currently working, but worried about being laid off.  On examination, the Veteran was anxious and somewhat pressured, with some slight psychomotor agitation.  His thought process was described as a bit fragmented.  The Veteran denied suicidal or homicidal ideation, and insight and judgment were deemed to be fair to limited.  The examiner diagnosed generalized anxiety disorder and assigned a GAF score of 55.

October 2002 and March 2003 statements from The Family Counseling Center reflect that the Veteran had been seen by a therapist since June 2002.  He was diagnosed with an anxiety disorder not otherwise specified.  The March 2003 statement notes that this psychiatric disability mainly affected the Veteran's social functioning.  Symptoms noted included flat, restricted affect, irritability, anger, impulsive behaviors, limited coping skills, and difficulty expressing feelings in appropriate ways.  The counselor noted that the Veteran had minimal progress even with counseling.

Another statement from July 2003 notes that the Veteran suffered from anxiety and had been recently laid-off, which only increased the Veteran's anxiety.  An October 2009 statement reflects that the counselor had treated the Veteran since 2000, and was currently seen along with his wife for marital counseling.  She noted that he continued to exhibit heightened anxiety, impulsivity, relationship difficulties, anger management problems, sleep disturbance, and intimacy issues.  She expressed her belief that the Veteran had been experiencing these symptoms at the same severe level since his discharge from service.

On VA psychiatric evaluation in March 2010, the Veteran reported symptoms of depression, anxiety, irritability, and impulsivity.  He indicated that he took time off from his job frequently because of these symptoms.  He also indicated that he frequently argued with his wife and children.  On mental status examination, the examiner observed that the Veteran's psychomotor activity was hyperactive, combative, and restless.  Affect was constricted, while mood was anxious, agitated and dysphoric.  The Veteran was oriented to time, place, and person and adequately groomed.  With respect to judgment and insight, the examiner noted that the Veteran understood the outcome of behavior and that he had a problem.  Impulse control was described as fair.  The examiner noted that the Veteran's mood impacted his social functioning, in that the Veteran lacked the motivation to go out and socialize with people.  There was no indication of hallucinations or delusions, but his concentration, attention, and memory were described as impaired.

The March 2010 VA examiner noted that the Veteran was currently employed full time as a machinist, but that his psychiatric disability impacted his occupational functioning, including decreased concentration, increased absenteeism, increased tardiness, memory loss, and poor social interaction.

The examiner diagnosed mood disorder, posttraumatic stress disorder (PTSD), and personality disorder, and assigned a GAF score of 45.  The examiner found that there was not total occupational and social impairment due to mental signs and symptoms, but that the Veteran's psychiatric disability caused reduce reliability and productivity with regard to time taken from work due to symptoms.  The examiner also noted that relationships with his wife and children were strained due to his symptoms.  In addition, the examiner noted that the Veteran was diagnosed with depressive disorder in service and subsequently developed PTSD symptoms.  The examiner found that the Veteran had been experiencing these symptoms for many years, but that it was most likely that the Veteran did not have PTSD symptoms when he was first diagnosed with depressive disorder.  In addition, the examiner noted that the Veteran's psychiatric condition had deteriorated significantly since 2002, when resigned from both of his previous jobs and stopped socializing with people.  The examiner also noted that the Veteran's relationships with his wife and children had deteriorated since 2002.

Considering the pertinent evidence in light of the governing legal authority, the Board finds, as of August 8, 2002, the evidence continues to reflect symptoms of the type, severity, and frequency consistent with the level of impairment contemplated in the 50 percent rating.  

For this period, the Veteran's psychiatric symptoms have primarily included constricted affect, depression, anxiety, anger, irritability, limited coping skills, and difficulty with interpersonal relationship with his wife and children, which have resulted in no more than 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.

At no point since August 8, 2002, has the Veteran's psychiatric disability met the criteria for at least the next higher, 70 percent rating.  As noted above, under the General Rating Formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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.  However, the objective medical evidence does not show such symptoms as near continuous panic attacks, spatial disorientation, neglect of personal hygiene or obsessional rituals that are characteristic of the 70 percent rating.

The Veteran has had some documented symptoms of difficulty in establishing and maintaining effective social relationships, in that the record reflects that his relationships with his family members, and in particular with his wife and children, are strained and combative. Although he has shown difficulty in establishing social relationships and some social isolation (and would also, presumably, have difficulty in establishing work relationships), the competent medical evidence reflects that the Veteran has maintained full-time employment throughout this period and that his social conflict is mainly limited to his own family.  To the extent that the Veteran's experiences social isolation and strained family relationships, such social functioning is contemplated in the currently assigned 50 percent rating.

In addition, the March 2010 VA examiner found that there was not total occupational and social impairment due to mental signs and symptoms, but rather only reduce reliability and productivity due to time taken from work due to symptoms, consistent with the assigned 50 percent rating.

The Board further finds that none of the GAF scores assigned since August 8, 2002, provide a basis for assigning a higher rating. As indicated, the Veteran was assigned the following scores during this period: 55 in August 2002 and 45 on examination in March 2010.

As noted above, according to DSM-IV, 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).  Under the DSM-IV, GAF scores from 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).  The Board finds that these scores, reflecting moderate-to-serious symptoms, are consistent with the currently assigned 50 percent rating.

The Board acknowledges the Veteran's belief that his symptoms for the period from August 8, 2002, are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record.  Therefore, the Board finds that the medical findings, which directly address the criteria under which the disabilities are evaluated, more probative than the Veteran's assessment of the severity of his disability.  Moreover, his subjective complaints have been considered in assigning the current ratings.

Under the circumstances of this case, the Board finds that, for the period beginning August 8, 2002, the Veteran's atypical affective disorder symptomatology has more nearly approximated the criteria for the 50 percent rather than 70 percent rating.  See 38 C.F.R. § 4.7.  As the criteria for the next higher, 70 percent, rating are not met, it follows that the criteria for an even higher rating (100 percent) likewise are not met.

      C. Both  Periods

The above determinations are based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point since the September 2002 effective date of the award of service connection has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321*1) (cited in the February 2011 SSOC).  

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. § 3.321(b)(1) (2012); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. § 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal.  The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met.  See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

In adjudicating each claim for a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  While the Board has resolved all reasonable doubt in the Veteran's favor in reaching the decision to award an initial 50 percent rating for atypical affective disorder for the period from September 16, 1992 through August 7, 2002, the preponderance of the evidence is against assignment of any higher rating at any other point to this appeal (to include pursuant to Fenderson, cited above).  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990).











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ORDER

An initial 50 percent rating for atypical affective disorder, for the period from September 16, 1992 through August 7, 2002, is granted, subject to the legal authority governing the payment of VA compensation.

A rating in excess of 50 percent for atypical affective disorder is denied.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs