Citation Nr: 1333969 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-15 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for depression. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1993 to January 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. FINDING OF FACT The service-connected depression more closely approximates occupational and social impairment with evidence of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptomatology associated with the service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for depression, secondary to the service-connected lumbar spine disability, have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.655, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran received adequate notice to his current address of a scheduled VA examination in June 2012; however, he failed to report without good cause. See 38 C.F.R. § 3.655 (2013). It is important for the Veteran to understand that even if the Board did not deny on this basis, there is still no basis to grant the claim. The Board will explain below. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Here, the disability ahs not significantly changed and a uniform evaluation is warranted. 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 (2013). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran's depression, secondary to the service-connected lumbar spine disability, is evaluated at 30 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R § 4.130, DC 9434. Under the General Rating Formula for Mental Disorders, a 30 percent disability evaluation is assigned for occupational and social impairment with evidence of 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, or recent events). 38 C.F.R. § 4.130. A 50 percent disability evaluation 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 in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted 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. Id. A 100 percent disability evaluation 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2013). 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. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed in the diagnostic code are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan, 16 Vet.App. at 442. In the context of determining whether a higher disability evaluation is warranted, the DC requires not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment. VazquezClaudio, 713 F.3d at 117-18. The Global Assessment of Functioning (GAF) scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the DSM-IV; see also Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Higher scores correspond to better functioning of the individual. Id. A score of 31 to 40 indicates 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. A score of 41 to 50 is defined as 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. After a full review of the record and consideration of whether the assignment of separate (staged) ratings for separate periods of time is warranted, the Board finds that the evidence is against an initial rating in excess of 30 percent for any period on appeal. On VA examination in April 2009, the Veteran's current symptoms included the following: sad mood, anhedonia, problems with attention and concentration, sleep disturbance, change in appetite, weight loss, decreased interest in people and activities, social isolation, and feelings of irritability and anger. His social history includes a divorce in 2007, he visits his two children four times a year, not currently involved in a serious dating relationship, and no longer engaged in social and recreational activities. Upon mental status examination, the VA examiner noted the Veteran was well groomed and casually dressed, maintained good eye contact, and rapport was easily established and maintained. Speech was normal in volume, tone, rate, and prosody. Thought processes were reality-based, logical, and goal-directed. Judgment and insight appeared intact, memory was good, and attention was within normal limits. His mood seemed mildly depressed and affect was constricted in range. The Veteran reported having problems initiating sleep, and denied any past or current hallucinations, suicidal ideation, and homicidal ideation. Following the clinical interview and review of computerized medical records, the VA examiner listed the Axis I diagnosis as recurrent and moderate major depressive disorder and assigned a GAF score of 50. The examiner also concluded that the Veteran is able to perform basic activities of daily living and the Veteran reported moderate depressive symptoms that significantly impair his social and interpersonal functioning. Records from May 2009 to October 2009 reveal the Veteran's concern with commitment phobia, involvement with a new significant other, and anticipatory anxiety about a serious relationship and attending a family event. Examination findings documented his mood as anxious and irritable, affect as congruent, cooperative behavior, normal thought content/process, and no suicidal thoughts or risk of self harm observed or reported. In June 2009, the Veteran was assigned a GAF score of 40. Pursuant to seeking private treatment for the service-connected lumbar spine disability, records document the following psychiatric symptomatology. June 2008 records note the Veteran denied depression or anxiety and he was pleasant, cooperative, well-groomed, and oriented to person, time, and place. October 2008 and November 2008 records note the Veteran's assertion that pain affects his mood, and his denial of memory loss, confusion, and nervousness. Review of his psychiatric system was positive for depression and insomnia, and physical examination findings revealed he was alert and oriented to person, time, and place, intact recent and remote memory, fluent speech, and normal attention span, concentration, and fund of knowledge. Pursuant to private treatment for other nonservice-connected disabilities, records from May 2010 to September 2010 document the Veteran's personal and social history as divorced, lives alone, and engagement in the following hobbies: politics, reading, fine dining, and friends. Review of the psychiatric system revealed his denial of depression, thoughts of suicide, and feeling unhappy. Examination findings documented the Veteran as pleasant, cooperative, oriented to person, time, and place, well-groomed, and appropriate affect. During the appeal period, the Veteran has also asserted that his service-connected depression warrants a rating higher than the currently assigned evaluation. Specifically, in an October 2008 statement, the Veteran reported his acute chronic lower back pain drastically affects his physical, emotional, and social well-being. In the August 2009 notice of disagreement, he asserted that he informed the VA examiner of his depressed mood, anxiety, panic attacks, and chronic sleep impairment, he is taking psychiatric medication, attending counseling, has anxiety attacks two to four times a week, and still battles depression. In the April 2010 substantive appeal, via a VA Form 9, he asserted that medical evidence shows panic attacks occur more frequently than once a week and has been prescribed medication to treat his anxiety/panic attacks. He informed the VA examiner of his inability to maintain social relationships for the past several years. Lastly, his severe depression led to periods of unprovoked periods of violence resulting in his arrest in January 2009. With regard to the Veteran's occupational history, he reported at October 2008 and November 2008 private treatment sessions to working as a technical writer for an aerospace company in Fort Worth, Texas. He has taken off work at least once a week due to uncontrollable back pain. Additional private treatment records from May 2010 to September 2010 document he is employed. In addition, the April 2009 VA examination report notes his occupational history reveals the Veteran has worked as an aerospace technical writer since July 2008. The Veteran also denied that his psychiatric symptoms have impacted his occupational functioning. The assigned GAF scores during this appeal period are found to be inconsistent, with the demonstrated symptomatology of record during the initial appeal period. The GAF score 40 (June 2009 private treatment record) indicates some impairment in reality testing or communication or major impairment in several areas, such as work, family relations, judgment, thinking, or mood. The GAF score 50 (April 2009 VA examination report) indicates serious symptoms or any serious impairment in social or occupation functioning. Higher scores correspond to better functioning. See Richard, 9 Vet. App. at 267, citing the DSM-IV; see also Carpenter, 8 Vet. App. at 242-44. Here, there is a conflict in the record. We conclude that the GAF of 40 is inconsistent with the clinical findings and we accord the score little probative value. The Board notes that, based on the lay and medical evidence discussed above, the Veteran's psychiatric symptomatology is not, at any time, indicative of reality testing or communication impairment, major impairment in several areas of his life, or of serious impairment of social and/or occupational function. In fact, the Veteran has demonstrated reality-based thought processes, fluent speech, normal attention span and concentration, normal fund of knowledge, and social interaction with his children and a significant other. The April 2009 VA examiner also noted the Veteran reported moderate depressive symptoms. As a result, the Veteran's psychiatric symptomatology does not justify the assignment of a higher disability rating at any time during this appeal period. As discussed above, his symptomatology more closely approximates a moderate degree of disability, rather than serious impairment. See also 38 C.F.R. § 4.126(a). After a full review of the record and consideration of whether the assignment of separate (staged) ratings for separate periods of time is warranted, the Board finds that the evidence is against an initial disability rating in excess of 30 percent. As discussed above, the evidence of record indicates the service-connected disability more closely approximates manifestations of occupational and social impairment with evidence of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptomatology, and not productive of occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology. To the extent that there is a pleading to the effect that the disability is more severe, we conclude that the clinical findings are more probative of the degree of the Veteran's impairment. Pursuant to the discussion above regarding the Veteran's occupational history, the Board finds that neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to his service-connected depression. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Lastly, the Board has considered whether referral for an extra-schedular evaluation is warranted. In exceptional cases an extra-schedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, 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. Id. The Board finds that the symptomatology and impairment caused by the Veteran's depression is specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. The schedular rating criteria, DC 9434, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's depression has manifested anxiety, insomnia, use of psychiatric medication, panic/anxiety attacks, irritability, unprovoked periods of violence, decreased interest in activities, anhedonia, and social isolation. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. The schedular rating criteria specifically include occupational and social impairment, as indicated by occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks, and as caused by specific psychiatric symptoms. The schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442; see also 38 C.F.R. § 4.21. Additionally, the Board has considered GAF scores, which are incorporated through the DSM-IV as part of the schedular rating criteria, as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by the service-connected depression. For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Veteran's depression and referral for consideration of an extra-schedular evaluation is not warranted. Therefore, fully considering the lay and medical evidence of record, the Board finds that an initial rating in excess of 30 percent for depression, secondary to service-connected lumbar spine disability, is not warranted. 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a November 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the November 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, private treatment records, statements from the Veteran, and an April 2009 VA examination for PTSD. The VA examiner recorded pertinent examination findings and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative with regard to the nature and severity of the service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's only VA examination in connection with this claim was approximately five years ago; however, the Veteran received adequate notice of a scheduled VA examination in April 2012 and failed to report without good cause. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, as in this case, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). A claimant has a duty to report for VA examination and must accept the legal consequences for failing to report for good cause. See Turk v. Peake, 21 Vet. App. 565, 567 (2008). In November 2009, the Veteran submitted an Authorization and Consent to Release Information VA Form 21-4142 identifying treatment for depression from Dr. S. H. In November 2009 and December 2009, the RO submitted a request for such records and no response was received. In a February 2010 report of contact with the Veteran, he was informed of the RO's unsuccessful efforts and that it is his responsibility to see that VA receives these records. The Veteran replied "I have t[r]ied to contact Dr. S. H. num[er]ous times without success. Please proceed with my claim without any further delay." Thus, the Board finds that VA's duty to assist the Veteran has been satisfied. See 38 C.F.R. § 3.159(e). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial rating in excess of 30 percent for depression is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs