Citation Nr: 1334322 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-07 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial compensable rating for major depressive disorder. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to March 1983 and from January 2003 to May 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT Since the initial grant of service connection, the Veteran's major depressive disorder has been manifested by depressed mood, difficulty sleeping, flattened affect, and disturbances of motivation and mood resulting in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Otherwise, the Veteran is generally functioning satisfactorily with routine behavior, self-care and conversation. CONCLUSION OF LAW The criteria for an initial compensable rating have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.310, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The issue on appeal arises from the Veteran's disagreement with the initial rating assigned following the grant of service connection for major depressive disorder. Once service connection is granted, a claim is substantiated, additional 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). VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The RO has obtained all of the Veteran's service and post-service treatment records and the Veteran was afforded a VA examination in December 2011. The examiner reviewed the Veteran's claims file, discussed the Veteran's history of the condition, examined the Veteran, provided the medical information necessary to apply the appropriate rating criteria, and included rationale for the conclusions reached. This examination is adequate for evaluation purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 . In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Major depressive disorder is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which directs that a General Rating Formula be applied. The General Rating Formula for Mental Disorders provides that a 10 percent rating is warranted 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. A 30 percent rating is warranted 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 identified 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). A 50 percent rating is warranted when there is evidence demonstrating 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by the 4th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) as number between zero and 100 percent that represents the "psychological, social, and occupational functioning" of an individual "on a hypothetical continuum of mental health illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 41-50 illustrates "[s]erious 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 to 60 reflects 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). A GAF score of 61 to 70 reflects some 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, has some meaningful interpersonal relationships. In the rating action on appeal, the RO considered the provisions of 38 C.F.R. § 3.310 and granted service connection for major depressive disorder on the basis that it was aggravated by the Veteran's service-connected right knee disability. VA is required to grant service connection for the degree of aggravation of a nonservice-connected condition by a service-connected disability and to pay compensation for that level of disability attributable to such aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). In such a case, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the nature progress of the disease, from the current level. 38 C.F.R. § 3.310. Based on the findings reported in a December 2011 VA examination, the RO awarded service connection for aggravation of major depressive disorder. In assigning the initial rating, the RO determined that the pre-aggravation baseline level of disability of the Veteran's major depressive disorder was 30 percent disabling. The RO then determined that the current level of disability of the Veteran's major depressive disorder was 30 percent disabling. Pursuant to 38 C.F.R. § 3.310(b), the RO then deducted the pre-aggravation baseline level of severity (30 percent) from the current level of severity (30 percent) and assigned a noncompensable disability evaluation. Turning to the relevant evidence of record, a March 2011 VA treatment record shows the Veteran first sought treatment for depression. The examiner indicated that the Veteran suffered from the following stressors: her knee pain; her job; and significant relational issues with her husband. The examiner diagnosed major depressive disorder, recurrent, moderate and partner relational problems, and assigned a GAF score of 55. In June 2011, VA treatment records indicate that the Veteran reported that her biggest stressor was her physical limitations after knee replacement surgery in 2008. The Veteran also indicated that she had ongoing relational issues with her husband. The Veteran's GAF score was 57. In February 2012, the Veteran indicated that she has ongoing stress related to her knee and decline in her quality of functioning. The examiner noted that the Veteran's knee stressor was contributing to her depressive symptoms. The Veteran also indicated ongoing relational issues with her husband. The Veteran's GAF score was 58. In September 2012, the Veteran reported several ongoing stressors related to her knee pain; pending divorce; and housing issues. In November 2012, the Veteran's stressors remained the same and her GAF score was 57. At a December 2011 VA examination, the Veteran reported symptoms of depressed mood, chronic sleep impairment, flattened affect and disturbances of motivation and mood. She reported that she was currently separated from her fourth husband who is occasionally physically abusive to her. She said her relationship with her children "isn't great." She is close to her family and has a good social network of friends that she maintains contact with. She was unable to engage in her past hobbies, which include running and other types of physical activities. She stays at home "a lot now" and avoids social interactions. She is active in her church and regularly attends. She is currently employed as a correctional officer. She described being harassed at work and feeling unable to defend herself. She also noted that she is physically unfit to work at the job, but feels the job is necessary because of the financial security. She reportedly also has good social skills that help to keep her employed. She goes to work regularly and performs her duties to the best of her abilities. She misses work on some days because of her depression. She described having poor attendance at work due to her physical pain. The examiner characterized the Veteran as having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner diagnosed the Veteran with major depressive disorder, recurrent, moderate severity. The examiner opined that it is less likely than not that the Veteran's diagnosis is due to or the result of her service-connected right knee condition. The examiner explained that the Veteran described a long history of physical abuse, verbal abuse, and partner-relational issues that are more probable origins for depression. The examiner noted that while the Veteran's service-connected knee condition did not cause the Veteran's depression, it is at least as likely as not that it exacerbated the Veteran's depression. The examiner indicated that a "baseline measure of the depression prior to the knee surgery would likely result in a GAF score of 65 to reflect moderate depressive symptoms independent of the knee condition. The effects of the service-connected knee condition on [the Veteran's] preexisting depression are mild and would represent a small decline in functioning with an associated GAF score of 60." The examiner noted that the Veteran experiences social impairments because of her inability to perform activities that she previously enjoyed and her increased dependence on others to help her perform tasks. The examiner indicated that the Veteran's self confidence was affected because of her lack of mobility, which stems from her knee condition and further adds to her depression. The examiner also noted that while the Veteran experiences work difficulties because of her knee condition, these impairments are accounted for with compensation for her service-connected knee and do not stem from her depression. The RO reviewed the evidence and determined that the pre-aggravation baseline level of disability of the Veteran's major depressive disorder was 30 percent disabling and the current level was 30 percent disabling. Deducting the pre-aggravation baseline level of severity (30 percent) from the current level of severity (30 percent) to determine the level attributable to aggravation left 0 percent. Although the Veteran's major depressive disorder is currently assigned a noncompensable rating, to warrant an increased initial rating, the disability picture must more nearly approximate the criteria required for a 50 percent rating, the next higher rating under the appropriate diagnostic code. If that were the case, deducting the baseline level (30 percent) from a current level of 50 percent would result in assignment of a 20 percent rating. See Allen, 7 Vet. App. at 429. The Board finds that the current disability picture does not more closely approximate the criteria required for a 50 percent rating. The December 2011 VA examiner indicated that the effects of the Veteran's service-connected right knee disability on the Veteran's preexisting major depressive disorder are mild and that it would represent a small decline in functioning with an associated GAF score of 60, from a pre-aggravation GAF score of 65. The VA examiner indicated that the Veteran's major depressive disorder was manifested by depression, difficulty sleeping, and disturbances of motivation and mood, all of which has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A review of the medical evidence during this time frame revealed GAF scores ranging from 55 to 60. A GAF score of 51 to 60 reflects moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DSM-IV, at 32. The evidence of record supports a 30 percent evaluation for the Veteran's service-connected major depressive disorder. The Veteran has symptoms of disturbances of motivation and mood, but her symptoms do not include those associated with a 50 percent rating (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; or difficulty in establishing and maintaining effective work and social relationships). However, the Board's inquiry is not strictly limited to the criteria found in the VA rating schedule. See Mauerhan, supra. The symptoms present must also cause the occupational and social impairment in the referenced areas. Vazquez-Claudio, supra. Upon review of the evidence, the Board finds that the Veteran's symptoms more closely approximate the rating criteria for a 30 percent rating. She reported in her December 2011 VA examination that she is close to her family and has a good social network of friends that she maintains contact with. Although she said she avoids social interaction, she is active in church and attends regularly. She is employed in a job she finds physically difficult, but reportedly works regularly and misses "some days" because of depression. Taken as a whole, the manifestations of the Veteran's major depressive disorder are most analogous to those contemplated by a 30 percent evaluation. The extent and severity of the Veteran's actual depressive disorder symptoms reported and/or shown are suggestive of 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); i.e., the level of impairment contemplated in the assignment of a 30 percent rating for psychiatric disabilities. See Mauerhan, supra, Vazquez-Claudio, supra. More severe symptomatology has not been shown. VII. Other Considerations Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's psychiatric disability (mainly depression, flattened affect, and chronic sleep impairment) are contemplated by the applicable rating criteria. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran is currently employed and there is no evidence of unemployability due to the Veteran's psychiatric disability. Further consideration of TDIU is not warranted. ORDER Entitlement to an initial compensable rating for major depressive disorder is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs