Citation Nr: 1335393 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-15 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial rating in excess of 30 percent for major depressive disorder and posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut that granted service connection and assigned an initial 30 percent rating for major depressive disorder and posttraumatic stress disorder (PTSD), effective April 10, 2009. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a written brief presented by the Veteran's representative dated in September 2013 and additional VA treatment records dated from November 2012 to March 2013 that are not duplicative of documents in the paper claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran's service-connected psychiatric disability is manifested by no worse than 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, panic attacks (weekly or less often), and chronic sleep impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for major depressive disorder and PTSD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130 Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In rating cases, a claimant must be provided with information pertaining to the assignment of disability ratings (to include the criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2009. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for a VA psychiatric examination in July 2009. The Board finds that the examination obtained in this case was more than adequate, as it provides findings relevant to the criteria for rating the Veteran's psychiatric disorder. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The claims file was reviewed and the examiner considered the full mental history of the Veteran. The Board finds that the examination was adequate to allow proper adjudication of the issue on appeal. VA has substantially complied with the notice and assistance requirements and the claimant is not prejudiced by a decision on the claim at this time. II. Legal Criteria, Factual Background, and Analysis A. Criteria of Disability Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The pendency of the issue in this instance dates to the original rating decision granting service connection. Id. Consequently, the Board will evaluate the Veteran's psychiatric disorder as a claim for a higher evaluation of the original award. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). B. Increased Rating for Psychiatric Disorder The Veteran was assigned a 30 percent rating for major depression and PTSD, effective from April 10, 2009, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 provides that a 30 percent rating is warranted for occupational and social impairment with an 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. A 50 percent 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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. The Global Assessment of Functioning (GAF) scale is 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 (1996), citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 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 between 51 and 60 indicates that the Veteran has 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). GAF scores ranging between 61 and 70 reflect 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, and has some meaningful interpersonal relationships. A GAF score of 71 to 80 indicates, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See DSM-IV. While the Rating Schedule indicates that the rating agency must be familiar with the DSM -IV, VA does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Rather, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. C. Analysis The Board considered the Veteran's VA psychiatric examination, the VA treatment records, the Veteran's own assertions in support of his claim, and the argument in support of the claim provided by the Veteran's representative. Each piece of evidence will be discussed below. A VA psychiatric examination was provided in July 2009. The Veteran's claims file and electronic record were reviewed by the examiner, and the Veteran was interviewed. The Veteran reported intrusive thoughts and nightmares, depressed mood, low energy, loss of interest, appetite disturbance, and emotional tearfulness. The Veteran reported a history of problems with anger, but no violence. The examiner also noted the Veteran's record of mild hypervigilance. At the examination, the Veteran appeared distressed in response to discussion and reminders of his stressors. He described a history of avoiding the topic of his service in Vietnam. He also reported some psychogenic amnesia for combat events from Vietnam, and this is noted in his stressor statement contained in the claims file. The Veteran claims that the 2 or 3 months following the traumas of the Tet offensive "are just a blank in my memory." The examiner found that the Veteran manages activity of daily living independently, though he does report at times having difficulty getting out of bed. The Veteran worked in industrial sales and in the metal industry. He had recently been laid off from a position he had held for 3 years. In his spare time, the Veteran explained that he enjoyed photography and riding his bicycle. He reported recently going with his son to do a "photo shoot" of wildflowers in the country. Also, he had recently moved into the home owned by his parents and he was actively remodeling it. The Veteran's thought process was described as logical and organized with no evidence of thought disorder. He denied hallucinations or delusions and there was no evidence of these on examination. The Veteran denied suicidal and homicidal ideation. His cognition was not formally tested, but the examiner found them to be grossly intact. The Veteran's insight and judgment were described as good. The Veteran was also reported as being competent to handle his finances. The examiner diagnosed the Veteran with major depressive disorder and reported a GAF score of 50 to 55. The Board also reviewed the VA treatment records. The VA treatment records in the paper claims file are dated from December 2002 to October 2009. VA treatment records in the Virtual VA file that are relevant are dated from November 2012 to March 2013. The April 2009 notation in the VA treatment records is the first discussion of the Veteran's psychiatric condition. Symptoms including intrusive thoughts, avoidance, limited trauma-related nightmares, and some distress on exposure to helicopters and loud noises were noted. The Veteran reported having a depressed mood and feeling "edgy." Low motivation was noted as a significant problem. He reported sleep and mild appetite disturbance. However, he mentioned not having any suicidal or homicidal ideation. The Veteran is described in the evaluation as having functioned rather well in both occupational and interpersonal domains for many years. As mentioned above, he lost his job, but he reported being motivated to return to work. Mild arousal symptoms and some avoidance symptoms were noted. A GAF score of 53 was assigned; this is the lowest score in the VA treatment records. After the April 2009 evaluation, the Veteran began treatment. A clinical note from May 2009 indicates trials of multiple medications. The Veteran reportedly had difficulty tolerating them due to side effects including dizziness, nausea, and feeling unstable on his feet. Several outpatient notations regarding the Veteran's psychiatric condition were made between May 2009 and October 2009 in the paper claims file. Throughout those records, depressive symptoms including decreased interest in things, poor appetite, low energy, sleep disturbance, and thoughts of Vietnam are noted. However, in June 2009, an entry indicates that the Veteran "is becoming less reactive to trauma memories, beginning to feel more connected to people, and reported a reduction in irritability. Although [the Veteran] continues to experience early waking, he reported that he is falling asleep more easily and experiencing fewer nightmares." In some instances the Veteran's mood was defined as normal, such as in October 2009. However, sometimes, as in September 2009, the Veteran's mood was described as "mostly depressed with flat affect." In September and October 2009, he described being able to communicate better with his wife and that he had begun going on daily outings to take photographs. Throughout the VA treatment records, he is always reported as well groomed. Also, there is always a negative finding for suicidal and homicidal ideation. The Virtual VA file includes numerous entries reporting on the group therapy sessions that the Veteran attended. The description of symptoms in those records is similar to those found in the paper claims file. In February 2013, the Veteran's GAF score is reported as 65. In support of his claim for a higher rating, the Veteran submitted a statement in June 2010. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his condition. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran is not competent to provide a medical diagnosis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In his statement, the Veteran reported having nightmares of the Tet offensive and suffering from flashbacks that lead to panic and anxiety. These flashbacks are described as worse and uncontrollable when he is asleep. He reported experiencing difficulty in completing tasks and focusing. He also claimed to have difficulty meeting social obligations and not liking crowds. He reported napping a great deal, sometimes all day, and jumping at noises. The Board notes that the reported symptoms are the same symptoms the Veteran reported to the VA examiner and to his VA mental healthcare providers. The Board also reviewed the Veteran's representative's brief dated in September 2013 and located in the Virtual VA file. However, there is no additional information provided that was not discussed above. After considering the above referenced VA examination report, VA treatment records, and the Veteran's lay statements, the Board finds that the Veteran's service-connected major depression and PTSD does not warrant a rating in excess of 30 percent. When reviewing the symptomatology as a whole, the evidence fails to show symptoms that result in impairment which more nearly approximates the criteria for a higher rating of 50 percent. The Board acknowledges that a Veteran need not meet all or even most of the criteria for a higher rating for one to be assigned. However, the Veteran clearly falls within the criteria for a 30 percent evaluation. The Veteran's psychiatric examination and treatment records all show that he has normal and appropriate appearance, hygiene, and behavior, and is well oriented. Also, at the examination, the Veteran's thought process was described as logical and organized. Further, while the Veteran lost his job, there is no indication in the record that he is unemployed because he has demonstrated occupational and social impairment with reduced reliability and productivity due to his symptoms. While he has shown discomfort and difficulty in social situations, he has been able to maintain some effective relationships and participating in social activities. His relationships with his family members are described as good and he engages in activities such as taking daily photography trips. Further, the treatment records indicate that some of the symptoms, including the Veteran's sleep problems and his relationship with his wife, began improving with treatment. The Board also points out that the Veteran's GAF scores are generally consistent with the assignment of no more than a 30 percent rating. The Veteran has been assigned GAF scores consistently ranging between 53 and 65, which are reflective of no more than mild to moderate symptoms. In summary, for the reasons set forth above, the Board finds that the most probative evidence indicates that the Veteran's symptomatology is adequately addressed by the 30 percent evaluation presently assigned, and that entitlement to a rating in excess of 30 percent is not warranted at any time during the course of the appeal. D. Extraschedular Consideration Finally, an extraschedular evaluation is for consideration where service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disabilities. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected psychiatric disorder is adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected condition. Further, the clinical evidence demonstrates that the Veteran has not been hospitalized for his condition. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board also notes that as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable. The record indicates that the Veteran lost his job, but he reported wanting to secure a new job. The issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to an initial rating in excess of 30 percent for major depressive disorder with posttraumatic stress disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs