Citation Nr: 1332128 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 11-05 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial rating in excess of 10 percent for chronic adjustment disorder with anxiety, depresses mood, and insomnia, prior to July 30, 2010, and in excess of 50 percent from July 30, 2010. REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to August 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 Decision Review Officer decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that assigned an initial 10 percent rating for chronic adjustment disorder, effective December 28, 2007. An August 2010 rating decision increased the initial rating to 50 percent, effective July 30, 2010. The record before the Board consists of the Veteran's paper claims file and an electronic record known as Virtual VA. FINDINGS OF FACT 1. Prior to July 30, 2010, the impairment from the Veteran's chronic adjustment disorder more nearly approximated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than reduced reliability and productivity. 2. From July 30, 2010, the impairment from the Veteran's chronic adjustment disorder has more nearly approximated occupational and social impairment with reduced reliability and productivity than deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to July 30, 2010, the criteria for an initial evaluation of 30 percent, but not higher, for a chronic adjustment disorder have been met. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 9440 (2012). 2. From July 30, 2010, the criteria for an initial evaluation in excess of 50 percent for a chronic adjustment disorder have not been met. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code 9440 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in January 2008, prior to the initial decision rating his adjustment disorder. The Board is also satisfied that VA has complied with its duty to assist the Veteran. In this regard, the Board notes that service treatment records and VA treatment records have been obtained. The Veteran was afforded an opportunity for a Board hearing and also provided with appropriate VA examinations to determine the severity of his service connected chronic adjustment disorder. The examination reports reflect that in addition to examining the Veteran the examiners reviewed the Veteran's pertinent history. The reports are adequate for adjudication purposes. Neither the Veteran nor his representative has identified any additional, available evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). Under the rating criteria for chronic adjustment disorder, a 10 percent rating is warranted for 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 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, mild memory loss (such as forgetting names, directions, recent events). 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; 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 for 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 rating is assigned for 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9440 (2012). In evaluating the evidence, the Board has also considered the Global Assessment of Functioning (GAF) scores periodically assigned to the Veteran. The GAF score is based on a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 indicates some mild symptoms, such as depressed mood or some difficulty in social or occupational functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV at 46-47. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score of 41-50 is assigned where there are, "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)." Id. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work). Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court issued important guidance in applying psychiatric rating criteria. The Court stated that the specified factors for each incremental rating were examples rather than requirements for a particular rating. The Court stated that the analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme. Consistent with the foregoing, the Court also found it appropriate for a rating specialist to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. 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 addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected chronic adjustment disorder. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. In addition, the Board has thoroughly reviewed all the evidence of record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the claim. On a consult in December 2007, at a VA medical center (VAMC), it was noted that the Veteran had voiced suicidal ideations. The clinical social worker documented that the Veteran had symptoms of low self-esteem, irritability, negativity, difficulty sleeping, excessive use of alcohol, and depressed mood. On examination, the Veteran explained that he was experiencing increased stress due to marital and related criminal legal issues. However, after a comprehensive Suicide Risk Assessment, it was determined that the Veteran only presented a low risk of suicide due to factors such as denial of suicidal ideations at the time of interview, absence of feelings of hopelessness, and the presence of supportive family members. In addition, the Veteran stated that he was currently employed and intended to return to school to pursue a Bachelor's degree. During a follow-up appointment at the VAMC in July 2008, it was noted that the Veteran was still depressed and exhibited occasional, moderate, levels of anxiety. It was also noted that he was still having difficulty falling asleep, but would then sleep for seven to nine hours and have difficulty waking up in the morning. The Veteran reported that while he currently socialized less than he did before joining the army, he still drank socially approximately twice a month to the point of intoxication. In addition, the physician noted that the Veteran spent his leisure time playing video games, camping, swimming, going to the park with his son; and also maintained a good relationship with his mother, step-father, step-brother, and step-sisters. On mental status examination, the Veteran had no impairment of thought process or communications. There was no evidence of delusions or hallucinations. Eye contact was good and he was pleasant and cooperative with the interviewer. He had no inappropriate behaviors. While he was initially hesitant to discuss childhood issues, he eventually openly discussed issues from his past and present. In addition, while it was noted that the Veteran had a sense of hopelessness and impulsive judgment; it was also noted that he had accessible, positive, motivated, social support; a therapeutic relationship with a mental health professional; and future oriented plans and commitments. Moreover, the Veteran was adamant that because he had a son he would never hurt himself. These positive factors, coupled with the Veteran's denial of any suicidal ideations, resulted in a suicide assessment of "no significant risk." The Veteran was diagnosed with "adjustment disorder: mixed anxiety/depression," and assigned a GAF score of 55. During a VA posttraumatic stress disorder (PTSD) examination in September 2008, it was noted that the Veteran had never been psychiatrically hospitalized and that he met with a therapist occasionally, in addition to bi-weekly couples and individual therapy. The examiner noted that the Veteran was currently pursuing his Bachelor's degree and maintained some social relationships even though he worked and attended school full-time. The examiner described the Veteran as cooperative, friendly, relaxed, attentative, neatly groomed, and appropriately dressed. While the Veteran reported feeling anxious, nervous, and depressed, he also reported an improvement in his mood since returning to school. The Veteran also had no impairment of thought process or communications, and there was no evidence of delusions, hallucinations, panic attacks, ritualistic behavior, suicidal thoughts, or homicidal thoughts. It was noted that he reported having difficulty falling and staying asleep, and increased irritability and outbursts of anger. However, no violent episodes were noted. The Veteran also reported diminished interest in significant activities, and a feeling of estrangement from others. In addition, the Veteran reported that while he had been consistently employed for approximately two years, he had been written up for increased absenteeism and was therefore currently subject to termination. The Veteran was diagnosed with adjustment disorder with anxious mood, and assigned a GAF score of 65. According to the record of a February 2009 contact with the VAMC, the Veteran denied having depression or suicidal thoughts. However, he agreed to schedule a follow-up appointment. Shortly thereafter, the Veteran reported to the VAMC with symptoms of depression, anxiety, and feelings of helplessness. The Veteran reported that he had recently been advised to report for re-deployment, and that he was having increased marital difficulty. The Veteran expressed his willingness to participate in weekly counseling sessions. During the consult, it was noted that the Veteran currently had a 3.7 grade point average and would graduate with a bachelor's degree in four months. On mental status examination, the Veteran was described as cooperative, with a neutral mood and constricted affect. Eye contact was good, speech was relevant and spontaneous, thought processes were logical and goal-oriented, and his behavior was normal. While the Veteran reported suicidal ideations, and had a positive suicide assessment screening, he also reported being committed to his son and stated that he would not "abandon his child through self-harm." In a late February follow-up, the Veteran reported general improvement and no further suicidal ideation. At that time he was described as relaxed, focused, and "less angry appearing." It was also noted that his response to his anxiety medication was good, and he was assigned a GAF score of 60. During a VA mental disorder examination in December 2009, it was noted that the Veteran was still participating in therapy at a VAMC. However, the Veteran reported that while the therapists were great to work with, his results were less than optimal because he "tends to not follow up." The Veteran indicated that he still had significant difficulty sleeping, and tended to wake up feeling "drowsy and hung over." The Veteran stated that this symptom caused his excessive tardiness and led to his termination. It was noted, however, that he subsequently secured employment. Next, the Veteran described his general feeling of anxiety in large crowds and when faced with difficult situations. He reported that his alcohol abuse problem had increased, resulting in additional legal and marital problems. However, he also noted that since his last arrest, his use of alcohol had reduced significantly. The examiner described the Veteran as cooperative, friendly, relaxed, attentative, neatly groomed, and appropriately dressed, with normal affect. Although the Veteran reported episodes of violence, it was noted that his impulse control was good and he understood the outcomes of his behavior. While the Veteran reported that, due to fights, he no longer lived with his parents, he also noted that he was living with a friend with whom he was "getting along fine." The examiner assigned a GAF score of 65, and remarked that the Veteran's mental disorder did not result in deficiencies in areas such as judgment, thinking family relations, work, mood, or school. In addition, there was no reduced reliability or productivity due to mental symptoms. In February 2010, during mental health counseling, the Veteran had multiple negative suicide risk assessments and was assigned a GAF score of 60. In April 2010, the Veteran reported that he was working long hours at work and that he planned to return to school to pursue his Masters degree. At that time, he was again assigned a GAF score of 60. On a July 2010 VA mental disorder review examination, the Veteran described, "almost nightly anxiety-related insomnia, with worst nights about twice a week when he . . . . [gets] as little as two hours of sleep total." He reported that as a result, he suffered from fatigue, concentration loss, irritability, and tardiness. On mental status examination, the Veteran had no impairment of thought process or communications. There was no evidence of delusions, hallucinations, or inappropriate behaviors, and he was friendly and cooperative with the interviewer. The Veteran stated that he had suicidal thoughts, but he maintained that he "didn't come close . . . . and had no suicidal thoughts since" he got back on his medication. The Veteran also noted that he had not had any violent episodes since his prior exam in December 2009. In addition, he reported symptoms of low self-esteem and negativity, which improved with medication. The examiner diagnosed adjustment disorder with anxiety, depressed mood, insomnia, and alcohol dependence, recently in remission. The examiner also noted the Veteran had poor social interaction, and assigned a GAF score of 60. Analysis Prior to July 30, 2010 For the period prior to July 30, 2010, the Board finds that the Veteran is entitled to a disability rating of 30 percent. During the aforementioned period, the lowest GAF score assigned to the Veteran was 55, in July 2008, which contemplates moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran reported that his anxiety and insomnia led to his tardiness, which in turn resulted in the loss of employment. In addition, during the July 2008 medical visit and September 2008 VA examination, the Veteran reported reduced socialization and feelings of estrangement and detachment. Accordingly, the Veteran's symptoms and impairment meet the rating criteria for a 30 percent rating prior to July 30, 2010. However, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for the period prior to July 30, 2010. During this period, the Veteran expressed suicidal ideations; had violent episodes; abused alcohol; had difficult relations with his spouse; was arrested and had a number of legal problems; reported feelings of anxiety, depression and detachment; had chronic sleep impairment; and was ultimately terminated from his job due to tardiness. However, also during this period, the Veteran consistently stated that he would never commit suicide because of his son. He consistently voiced future oriented goals and did return to school to obtain his bachelor's degree, and maintained a 3.7 GPA while doing so. The Veteran also planned to pursue a masters degree. While working and attending school full-time, the Veteran found time to socialize in addition to spending time with his son. The Veteran also maintained good relationships with his mother, step-father, step-sisters, and step-brother. Though the Veteran lost a job due to tardiness, he was able to not only secure another job as a manager, but was promoted to a different region. Finally, the December 2009 VA examiner concluded that the Veteran's mental disorder symptoms were transient and decreased work efficiency and ability only during periods of significant stress. In sum, the Board concludes that the social and occupational impairment from the Veteran's chronic adjustment disorder more nearly approximated an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than the reduced reliability and productivity required for a 50 percent rating. Accordingly, a schedular rating of 30 percent, but not higher, is warranted for the period prior to July 30, 2010. From July 30, 2010 The Board finds that the Veteran is not entitled to a disability rating in excess of 50 percent for the period beginning July 30, 2010. In this regard, during the July 2010 VA examination, the Veteran was assigned a GAF score of 60 which contemplates moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran reported suicidal thoughts, but stated that he "didn't come close" and the suicidal thoughts disappeared once he resumed taking his medication. While there was marked irritability which could cause difficulty with interpersonal interactions, impulse control was fair and there were no episodes of violence. Moreover, while the Veteran reported increased tardiness at work, the examiner concluded that he did not have occupational and social impairment resulting in deficiencies in areas such as judgment, family relations, work, or school. Specifically, the examiner opined that the Veteran's symptoms resulted in reduced reliability and productivity. In sum, the record shows that the Veteran has only moderate impairment in a few, not most, areas. Therefore, a schedular rating in excess of 50 percent is not warranted. The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). As discussed above, the symptoms and impairment associated with the Veteran's adjustment disorder are contemplated by the schedular criteria. Therefore, referral of the claim for extra-schedular consideration is not required. ORDER The Board having determined that the Veteran's chronic adjustment disorder warrants a 30 percent rating, but not higher, for the period prior to July 30, 2010, and a 50 percent rating for the period beginning July 30, 2010, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs