Citation Nr: 1333656 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-50 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a higher initial disability rating for a mood disorder with depressive features, currently rated 30 percent disabling. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1980 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In that action, the RO granted service connection for a mood disorder with depressive features and assigned a 30 percent disability evaluation effective August 1, 2008. The Veteran's paperless Virtual VA claims file has been reviewed. Virtual VA claims files are a highly secured electronic repository that is used to store and review documents involved in the claims process. The file includes VA treatment records associated in July 2013. The Veteran waived RO consideration of these records and of other records submitted at the hearing. The Veteran testified before the undersigned in July 2013 at the RO. A transcript of the hearing has been included in the claims folder for review. FINDINGS OF FACT 1. The Veteran's service-connected mood disorder is manifested by deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood. 2. The Veteran meets the percentage requirements for TDIU and his service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for a mood disorder with depressive features have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.125-4.130, Diagnostic Code 9435 (2013). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2013). The claim arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims, hereinafter the Court, held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) (2013) and that the Board can adjudicate the claim based on the current record. VA has met its duties to assist the Veteran by obtaining all reported treatment records and providing examinations in which the examiners considered an accurate history and provided all findings needed to rate the psychiatric disability. At his hearing, the Veteran alluded to unsuccessful efforts to obtain Social Security Administration (SSA) disability benefits, but indicated that VA already had any relevant records considered by SSA. II. Initial Rating A. Laws and Regulations Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (2013), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (2013). If there is a question as to which disability rating to apply to the veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Staged ratings are provided in the case of an initial rating, if there are distinct periods when the disability was worse than at others. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected mood disorder with depressive features is currently rated 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435 (2013). This disorder is rated under the General Rating Formula for Mental Disorders, which provides that: A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent disability rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. A 50 percent disability rating is warranted 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. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994); 38 C.F.R. § 4.125 (2013). A GAF of 31 to 40 is defined as exhibiting some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or any 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as 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). See 38 C.F.R. § 4.130 (2013) [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. B. Facts and Discussion The Veteran underwent a VA examination in September 2008. He told the examiner that he suffered from severe pain all of the time. He asserted that this injury and the residuals had affected him psychologically. He had feelings of worthlessness, despair, and those involving suicide. On the mental status exam portion, the examiner noted that the Veteran was extremely depressed and dis-shelved. His mood was somewhat blunted and depressed but speech was normal. Perceptions were intact although the examiner did indicate that the Veteran had manifested psychotic behavior. There was no evidence of delusions or hallucinations, and he was oriented to time, place, and person. Insight was questionable but memory was deemed to be intact. The Veteran reported that he had some contact with his daughters and his immediate family. However, there was no indication from the report that the Veteran had meaningful social interactions with other individuals outside of his immediate, nuclear family. Upon completion of the examination, the examiner diagnosed the Veteran as suffering from "severe" depression as a direct consequence of his knee injury. The examiner also concluded that the Veteran's previous use of illegal drugs was directly related to his depression. A GAF score of 41 was given. The examiner opined that the veteran could not work from a physical vantage point. He experienced severe depression as a result. He experienced ongoing pain with limited physical mobility, which increased his depression. In addition, he was forced to be sedentary and could not participate in activities with his teenage daughter, further exacerbating his depression. The same examiner evaluated the Veteran in August 2009. The examiner indicated that the Veteran had a number of "psychiatric problems" but that he clearly suffered from a mood disorder secondary to the service-connected knee disability. The examiner wrote that he did not factor into the determination any other psychiatric manifestations the Veteran may have suffered from in the past and that the assignment of a GAF score of 41 reflected the severity of the disorder. It was also reported that while the Veteran's mood disorder would have an effect on his ability to obtain employment, it would not, in and of itself, prevent him from being employed. The Veteran had another VA psychiatric examination in April 2010. He complained of depression, irritability, and difficulty in sleeping. The examiner noted that the Veteran was on medications for his service-connected psychiatric disorder and that he was being "treated". Manifestations complained thereof also included hallucinations, panic attacks, anxiety, mania, intrusive thoughts, and nightmares. When examined, the examiner reported the following: However, he had poor hygiene and was malodorous. His eye contact was poor. His speech was inconsistent vacilating between soft and pressured. He was depressed and anxious. He was tearful through much of the evaluation and be[came] visibly agitated during his report of the traumatic episode, rocking back and forth. His thought process was circumstantial at times. . . . he denied current suicidality and homicidality. He was oriented x3. His immediate, recent and remote memory were all impaired. His concentration was impaired. His level of abstraction was impaired. His judgment was impaired. A GAF score of 40 was assigned. The examiner also found that the Veteran was suffering from posttraumatic stress disorder (PTSD), which was related to service, and that his polysubstance abuse was secondary to his service-connected depression. The medical evidence, private and VA, show assignment of GAF scores ranging from 40 to 55 with most being under 50. Analysis In evaluating the Veteran's disability, the Board is mindful that when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 4.3 (2013), which requires that reasonable doubt be resolved in the Veteran's favor, dictates that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181 (1998). In Mittleider, the veteran had been diagnosed with PTSD and various personality disorders and there was no medical evidence in the record separating the effects of the service-connected disability from the nonservice-connected disorders. Id. at 182. The Board finds this case is not distinguishable from Mittleider in that the medical evidence of record does not distinguish the symptoms that have been produced by the Veteran's service-connected mood disorder and the other psychiatric manifestations that may be attributable to a non-service-connected disorder. Accordingly, all psychiatric signs and symptoms will be considered herein. A veteran may only qualify for a given rating based on mental disorder by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Although a veteran's symptomatology is the primary consideration in assessing the appropriate disability rating, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki 713 F.3d 112 (Fed. Cir. 2013). The record shows that the Veteran has been assigned GAF's generally indicative of a serious disability. He has deficiencies in the area of work, as shown by those scores, the examination findings, and the opinions of some treatment providers that he would not be able to work due to his psychiatric symptomatology. The Veteran has reported impaired family relations, although he testified and elsewhere reported that he had a statisfactory relationship with his children. The record shows deficiencies in mood, and it is likely that the deficiencies in the area of work would translate into deficiencies in the area of school. This record supports a finding that the Veteran's service connected psychiatric disability meets the criteria for a 70 percent rating, since the effective date of service connection. The Veteran's psychiatric disorder is not productive of total occupational and social impairment as would be needed for a 100 percent rating. He has maintained relationships with his mother and his children. He does not have gross impairment in thought processes or communication. While he was noted to occasionally have serious thoughts of harming himself and a circumstantial thought process, treatment records consistently show that he was not experiencing suicidal or homicidal ideation. The remainder of the evidence shows that he does not have gross impairment in thought process and he has not attempted suicide. In addition, no deficits have been noted with respect to the Veteran's speech and communication skills. The Veteran does not suffer from persistent delusions. His behavior is not grossly inappropriate. The Veteran does not report nor is he assessed as being in persistent danger of seriously hurting others. It was noted that he is verbally abusive to others but he did not appear to be at risk of physical harm. He is able to perform activities of daily living, although he does have some difficulty in maintaining his personal hygiene. The Veteran was and is oriented to time, person, and place. While the Veteran may have occasional memory impairment, he does not have memory loss for the names of relatives, his previous activities, or his own name. None of the various VA or private health care providers who have provided treatment to the Veteran or who have examined him in conjunction with this claim has concluded that he has total occupational and social impairment due to a mood disorder with depressive features. At no point since the grant of service connection has it been shown that there is total occupational and social impairment such that a total rating should be assigned for some distinct period of time. Therefore, the assignment of staged disability ratings in this case is not necessary. C. Extra-schedular Consideration In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2013). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Veteran's psychiatric disability is manifested by social and occupational impairment, which is contemplated by the applicable rating criteria. Accordingly, the claim will not be referred for extra-schedular consideration. III. TDIU The Court held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that every initial rating includes TDIU. The record shows that the Veteran has been unemployed since 2007. As such, further consideration of entitlement to TDIU is warranted. A TDIU may be assigned where the schedular rating for service-connected disabilities is less than 100 percent when it is found that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation for which his education and occupational experience would otherwise qualify him; provided there is one disability rated 40 percent disabling or more and sufficient additional disability for a combined rating of 70 percent. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). The Veteran meets the percentage requirements for TDIU, because he has a 70 percent rating for his psychiatric disability and his combined rating is 80 percent. He has completed four years of high school and has experience working as a housekeeper and a phlebotomist. He has no other recent or current trade experience and the last time he worked was in 2007 as a housekeeping aid at the VA Medical Center in East Orange, New Jersey. The record indicates that he left that position because he could not control the manifestations produced by his service-connected psychiatric disorder. There is no indication from the Veteran's claims folder that he has ever received vocational rehabilitation training or any other specialized training. Following the RO's grant of service connection for a mood disorder in December 2008, the Veteran proffered a letter written by his VA psychiatrist. The letter was written in July 2009. In that letter, the VA medical doctor stated that the Veteran was unemployable as a result of his "mental condition." In the examination report dated in August 2009, the VA psychologist noted that the Veteran was "potentially" unable to work as a result to his service-connected knee disability, and that the psychiatric disorder would "impact negatively on his ability to maintain employment." An examination of the Veteran's right knee was accomplished in December 2009. The examiner wrote that the Veteran had significant functional impairments in regards to his right knee conditions that could limit his ability to perform physical employment there is no significant functional impairment that could limit his ability to perform sedentary work. At the psychiatric examination performed in April 2010, the Veteran told the examiner that problems that occurred when he was last employed included stress intolerance, need for a slow pace, lack of concentration, timeliness, anger outbursts, and symptoms of depression and paranoia. It was written that there was some effect on the Veteran's employment opportunities as a result of his service-connected disorders. A different psychologist, also with the VA, provided a detailed letter in June 2010. The psychologist concluded that the Veteran was unable to work due to symptoms associated with PTSD and a schizoaffective disorder - conditions that were attributed to and intertwined with his service-connected mood disorder. The treatment records, indicate that the Veteran has been given GAFs indicative of an inability to work. Although there are some opinions indicating that the Veteran might be able to work despite his service connected disabilities; the weight of the evidence is to the effect that his service connected knee and psychiatric disabilities would prevent him from maintaining gainful employment. TDIU is granted. ORDER An initial rating of 70 percent for a mood disorder with depressive features is granted, effective August 1, 2008. Entitlement to a TDIU is granted, effective August 1, 2008. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs