Citation Nr: 1332140 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-21 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable disability rating for depression not otherwise specified (NOS) due to service-connected low back disability. REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1989 to December 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a September 2009 decision, the Veteran was granted service connection for depression associated with status post L5-S1 diskectomy (low back disability), for which he is already service connected and has been assigned a 40 percent disability rating. The RO assigned an initial noncompensable (0 percent) rating for the Veteran's depression, retroactively effective from June 16, 2008, the date of receipt of the claim. His appeal is for a compensable rating, and in his Notice of Disagreement (NOD), he argued in support of a 30 percent rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating for this disability, absent express indication to the contrary). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The occupational and social impairment from the Veteran's depression NOS has more nearly approximated 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. CONCLUSION OF LAW The criteria for an initial disability rating of 10 percent, but not higher, have been met or approximated for the entire period on appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (2013), 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 that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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 prior to the initial adjudication of the claim, the Veteran was mailed letters in July 2008 and October 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letters also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds that the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records, service personnel files, and VA treatment records are on file, and the Veteran has been afforded the appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). 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 military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's psychiatric disability, currently identified as depression NOS, is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. This diagnostic code utilizes the general rating formula for mental disorders, which provides that a noncompensable (0 percent) disability rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 10 percent disability rating is warranted for a mental disorder when 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 30 percent disability rating is warranted for a mental disorder 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent disability rating is warranted for a mental disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent disability rating is warranted for a mental disorder when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. The maximum schedular rating of 100 percent is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. 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. A review of the record shows that the Veteran received medication management for his depressive disorder at the VA Medical Center from approximately March 2008 to April 2009, but that he does not currently appear to receive it. There is no indication that the Veteran received any mental health counseling at the VA, nor does the record suggest that the Veteran received private mental health treatment. In September 2009, the Veteran was afforded a VA examination. At that time, the Veteran reported that he was married for the second time and had five children. His social relationships were limited to family involvement, and his activities and leisure pursuits were limited due to back pain. He reported that he worked as a full-time clinical secretary for the VA. At that time, the Veteran reported that he was not receiving treatment for a mental disorder. He stated that he was no longer taking prescription medication for depressive symptoms or sleep impairment and was not receiving therapy. He reported that he had days when he was "moody" and became more withdrawn and irritable about once or twice a week with reduced concentration and interest. The Veteran reported that his depressed mood had lasted about a year and was mild in severity. Upon mental status examination, the Veteran was found to be clean and casually dressed. His psychomotor activity was unremarkable, his speech spontaneous, his attitude was cooperative toward the examiner, and his affect was normal. He self-reported his mood as "okay." The Veteran's attention was found to be intact; he was oriented to person, place, and time; and his thought process and thought content were unremarkable. The examiner found that the Veteran understood outcomes of his behavior, he had average intelligence, and he understood he had a problem. There was no evidence of delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. The Veteran had good impulse control, no episodes of violence, was able to maintain minimum personal hygiene, and had no problem with activities of daily living. The examiner diagnosed depressive disorder NOS, deferred diagnosis under Axis II, and assigned a Global Assessment of Functioning scale (GAF) score of 70. The examiner stated that the Veteran had mild depressive symptoms with no objective evidence of functional impairment occupationally, socially, or in his activities of daily living due to depressed mood alone. She also noted that the Veteran's symptoms did not require continuous medication. At this juncture, the Board notes that GAF scores are based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240 (242) (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1997) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a 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). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents 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 coworkers). A GAF score of 61-70 represents mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. While particular GAF scores are not contained in the VA schedule of ratings for mental disorders, 38 C.F.R. § 4.130, they are a useful tool in assessing a Veteran's disability and assigning disability evaluations. However, they are just one of many factors considered when determining an evaluation. In March 2011, the Veteran was afforded another VA examination. The Veteran reported that he had been married twice, to include his current marriage. He and his wife had five children who live with them. The Veteran reported working as a clerk or clinical secretary for the past 2.5 years. During the examination time, the Veteran denied having friends and reported that he did not do any activities or leisure pursuits because of his back pain. He reported that he yelled at his children, but that he did not physically injure or punish them. Upon mental status examination, the Veteran's psychomotor activity, speech, thought process, and thought content were unremarkable. His attitude toward the examiner was described as cooperative, friendly, relaxed, and attentive. His affect was normal and mood was good. The Veteran's attention was intact and he was oriented to person, place, and time. There was no evidence of delusions, hallucinations, obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. The Veteran understood outcomes of behavior, had average intelligence, understood that he had a problem, and showed no inappropriate behavior. The examiner noted no signs of sleep impairment. The Veteran had good impulse control and no episodes of violence. He was able to maintain minimum personal hygiene. While the examiner noted that the Veteran had problems with activities of daily living, the Veteran stated that they were related to his back pain. The examiner also made a diagnosis of depression NOS and deferred an Axis II diagnosis. She assigned a GAF score of 70. The examiner noted on a 10-point scale, the Veteran reported his sadness as a 4, pain as a 5 or 6, and satisfaction with his marriage a 6. The Veteran described the severity of his sad mood as mild. He stated that he did not have a diminished interest in leisure activities, "it's just that I can't do it because of my back." The Veteran also reported an increased appetite three days of the week with no weight gain that had lasted for the several months. He stated he slept around 5 or 6 hours a night and felt mild fatigue daily for the past month. He stated that he felt guilty and responsible for his family's current living situation since he was the only one with a job, and he wanted to give his family a better lifestyle. He denied any crying spells, self harm, or harm to others. The Veteran was noted to exhibit good concentration during the examination. The examiner stated that the Veteran reported minimal symptoms with mild severity. There was no objective evidence of functional impairment socially, occupationally, academically, or during the Veteran's activities of daily living based on a mental disorder. The Board finds that the Veteran is entitled to an initial disability rating of 10 percent, but not higher, for the entire period on appeal for his depression. The evidence shows that the Veteran's depression is manifested by mild or transient symptoms such as reported limited social relationships, mild depressed mood, lack of activities or leisure pursuits, and feelings of guilt for his family's living situation, which the Board finds to be in keeping with a 10 percent disability rating. The Board acknowledges that the results of the VA examinations and the symptoms described in the VA examination reports and various mental health treatment notes do not indicate that the Veteran experiences all of the symptoms associated with a 10 percent disability rating for a psychiatric disability. Indeed, the September 2009 and March 2011 examiners found no objective evidence of functional impairment occupationally, socially, or in the Veteran's activities of daily living. However, the Court has held that the symptoms enumerated under the schedule for rating mental disabilities are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in mild or transient symptoms is sufficient to warrant a 10 percent disability rating for the entire period on appeal even though all the specific symptoms listed for a 10 percent rating are not manifested. Consideration has been given to assigning a higher evaluation; however, at no time has the Veteran's depression been productive of occupational and social impairment that more nearly approximates occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this regard, the Board notes that the Veteran has been able to work full time, he describes his marriage as good, and he self-describes his symptoms as mild. In his NOD, the Veteran stated that he believed he was entitled to a 30 percent rating for his depression. He stated that in Richard (Mary) v. Brown, 9 Vet. App. 266, 267, the Court "recognized that a GAF score of 50 indicated 'serious' impairment" and thus warranted a 70 percent disability rating. The Veteran extrapolated the Court's holding to mean that a GAF score of 60 would indicate "moderate" impairment and warrant a 50 percent disability rating; a GAF of 61 to 70, like the Veteran's, would warrant a 30 percent disability rating; and a GAF of 71 to 80 would warrant a "slight" impairment for a 10 percent disability rating. The Board again notes that GAF scores are not a part of VA's schedule of ratings for mental disorders. 38 C.F.R. § 4.130. While they can be useful for assigning disability evaluations, they are only one factor to be considered. Here, the Veteran was twice assigned a GAF of 70; however, neither examiner found that the Veteran had any social, occupational, or school functioning. In addition, the Veteran works full-time, reports that he has a good marriage, and seems to be generally functioning well. He does not receive treatment for his depression, to include medications or counseling. Finally, the Board notes that the Veteran in Richard had PTSD as opposed to depression. Therefore, the Board finds that when the Veteran's disability picture is considered as a whole, his symptoms more nearly approximate those for the a 10 percent rating for the entire period on appeal. Therefore, a higher initial disability rating is not warranted. Based upon guidance of the Court, the Board has also considered whether a "staged" rating is appropriate. However, the Veteran's symptomatology associated with his depression has remained constant throughout the course of this appeal; therefore, a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that 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 evaluations for the service-connected disability at issue are inadequate. 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 the 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 (2008). In the case at hand, the record reflects that the manifestations of the disability are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has had frequent hospitalizations or has even received frequent emergency treatment for his depressive disorder. The Board notes that the Veteran not only has not reported that he is unable to obtain and maintain gainful employment as a result of his various service-connected disability, but he is currently employed full-time as a clinical secretary. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER An initial disability rating of 10 percent, but no higher, for depression NOS for the entire appeal period is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs