Citation Nr: 1335647 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-29 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating greater than 30 percent for dysthymic disorder, claimed as major depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, his mother and his sister ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from May 1989 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran, his mother and his sister testified in March 2011 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. This claim was previously before the Board in March 2013, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT The disability picture resulting from the Veteran's dysthymic disorder has not approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating higher than 30 percent for dysthymic disorder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.130, Diagnostic Code 9433 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The claim for increased ratings for dysthymic disorder arises from disagreement with the initial disability rating that was assigned following the grant of service connection. Courts have held that once service connection is granted the 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). With respect to the duty to assist in this case, the Veteran's service treatment records, private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with multiple VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) 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 determinations and noted the elements of the claim that were lacking. 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, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has 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. 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) and that the Board can adjudicate the claim based on the current record. II. Applicable Law, Regulations, and Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2013). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Dysthymic disorder is rated under the criteria of 38 C.F.R. § 4. 130, Diagnostic Code 9433. A rating of 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal) due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent 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 per week; difficulty 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 in motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned 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 that 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 rating of 100 percent 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; 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. In evaluating psychiatric disorders, VA has adopted and employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. As such, the diagnosis of a mental disorder should conform to DSM-IV. See 38 C.F.R. § 4,125(a). Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness, with 100 representing a high level of functioning and no psychiatric symptoms. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). At January 2009 VA treatment the Veteran was diagnosed with dysthymia and assigned a GAF score of 60. On examination the thought process was logical and goal directed without psychosis. He was working less and had some good days and bad days. The Veteran described his mood as "so/so" and there was no suicidal or homicidal ideation. The treating psychiatrist felt that insight and judgment were intact. The Veteran had a VA examination in April 2009 at which he reported that his family relationships were going well and that he had a few good friends. He worked out two or three times a week and rode his motorcycle every day that he could. There had not been a history of suicide attempts, and the Veteran reported having been in 20 fights and being shot in 1999. He said he had "good days and bad days" and rated his mood as five out of ten. Sometimes he liked doing leisure activities and sometimes he did not. Appetite was good and he usually slept four to five hours a night but said that he sometimes went for days without sleeping. His energy was low and he reported some problems with thinking or concentrating. There was no suicidal ideation, and he had thoughts of harming others that were not directed to anyone specific. The Veteran said that when he had those thoughts he would ride his motorcycle in a risky manner. The Veteran was unsure whether his medication for dysthymic disorder was working. On examination the Veteran was clean and neatly groomed. Psychomotor activity was unremarkable and speech was unremarkable and clear. The Veteran's attitude towards the examiner was cooperative and relaxed, affect blunted, and his mood anxious, depressed and dysphoric. Attention was intact and the Veteran was oriented to person, time and place. Thought process and content were unremarkable. The Veteran had paranoid delusions that were not persistent and he understood the outcome of behavior. The examiner did not feel that the Veteran had a sleep impairment, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. Impulse control was poor, as evidenced by an inability to stop himself from fighting. There were not any problems with activities of daily living and memory was normal. The Veteran was working full time as a truck driver and had been at his current job from five to ten years. The examiner diagnosed the Veteran with dysthymic disorder and assigned a GAF score of 65. There was not total occupational and social impairment due to a mental disorder. The examiner felt that the Veteran had signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks during periods of significant stress. At June 2009 VA treatment, the treating psychiatrist wrote that the Veteran's thought process was logical and goal directed without psychosis. The affect showed mild dysphoria and insight and judgment were intact. The Veteran reported difficulty sleeping and described his mood as alright. The treating psychiatrist assigned a GAF score of 60. A September 2009 addendum states that the Veteran was to begin a trial of Paxil because Celexa was giving him a rash. The Veteran described his mood as pretty good at January 2010 VA treatment. The treating psychiatrist again assigned a GAF score of 60. The Veteran wrote in a March 2010 statement that his symptoms were worsening. He felt he was suffering from symptoms of posttraumatic stress disorder and had been prescribed sleeping pills because he could only sleep soundly for a couple of hours and had nightmares. The Veteran had also been prescribed medication for depression and anxiety but felt anxious all of the time and sometimes felt uncomfortable around his own family. In July 2010 the Veteran wrote that he had anger and felt like he could explode at any minute. The Veteran testified at the March 2011 hearing that he felt his condition had worsened since the April 2009 VA examination. He said that he did not have a social life, did not like crowds, and liked to be by himself a majority of the time, which included not interacting with his family at home. In his work as a truck driver he tried to run a woman off the road who had made an obscene gesture at him. He did not have suicidal ideation and had been at his current job for four years. This was the longest he had been at any job because he usually would quit because of his difficulty with other people. The Veteran's mother testified that she lives near the Veteran but sees him less than she used to and that his wife reported him isolating himself at home and that he had nightmares. He had acted more distant over the years, and his telephone conversations with her had become shorter. The Veteran's sister testified that the Veteran spent less time with her sons than he used to. The Veteran said at January 2012 VA treatment that he was "depressed more of the days than not." The holidays had been stressful and made him feel more depressed. The Veteran had a GAF score of 60. At April 2012 and October 2012 VA treatment, a psychiatrist diagnosed the Veteran with dysthymia and assigned a GAF score of 64. The Veteran began VA treatment with a new therapist in January 2013. He reported a 20 year battle with symptoms of depression and anxiety that had included sad mood, panic attacks, withdrawal and isolative behaviors, anhedonia, decreased energy and motivation, intermittent suicidal ideation with no history of attempts, sleep disturbance, appetite loss, and increased alcohol use when he was more symptomatic. He had been promoted from truck driver to warehouse manager and liked the job, although it could be stressful. The Veteran said that he was not a people person. He felt that his depression had been worse and that he had intermittent suicidal ideation with no plan or intent. While he said he had never had a suicidal plan, he had engaged in reckless behavior. The therapist noted that the Veteran had ongoing feelings of anhedonia, fatigue, lack of energy/motivation, and isolation. At treatment later in January 2013 the Veteran reported stress from school, job, and family demands. He lived with his wife and five children and was not as happy as he felt he should be. The Veteran said at February 2013 treatment that his home life continued to be stressful, but that that he had made positive changes, such as decreasing his alcohol intake and joining a gym. He also reported nightmares related to his military service in Saudi Arabia. The Veteran continued therapy, and at April 2013 treatment related that he felt his depression was worse and that he had intermittent suicidal ideation with no plan or intent. Other symptoms related to depression were sad mood, withdrawal/isolation, neglect of self-care, and passive suicidal ideation. Symptoms related to anger management were verbal aggression, risk taking behaviors, and substance use. At May 2013 VA treatment the Veteran rated his mood as five out of ten and described it as "somber." The Veteran said he had ongoing stress related to work, school and home responsibilities. He reported continuing difficulty with waking up during the night and having trouble falling back asleep. The Veteran also discussed anger issues related to his work. The assessment by the treating licensed clinical social worker was that the Veteran was managing fairly well despite his current stressors and that his situation at home had improved. However, there were still times when it was difficult for him to not engage in emotion driven behavior related to his anger. The Veteran was given a GAF score of 65. The Veteran had a VA examination in May 2013 at which he said that his relationship with his children and stepchildren was going "okay." He had a few close friends locally and went to the gym two or three times a week, which he used as an outlet for his anger. Managing his anger continued to be a problem and he continued to have nightmares and difficulty sleeping. The Veteran said that he had pulled back emotionally from his wife in order to reduce tension. He continued to work full time and attend school. On examination the Veteran was lucid and fully oriented. Mood was slightly dysphoric with congruent affect, and speech was normal in rate and rhythm. Thought processes were well organized, and the Veteran denied any history of psychosis or suicidal or homicidal ideation. Attention and memory appeared intact. The Veteran was diagnosed with dysthymic disorder and assigned a GAF score of 65. The examiner felt that the Veteran had 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. Psychological testing suggested that the Veteran experienced anxiety and depression, primarily from traumatic experiences, and that the Veteran was socially withdrawn, had little support, and was prone to violent behavior. The examiner noted that the Veteran's score on the Negative Impression Scale suggested results that were valid but artificially elevated. At July 2013 VA mental health treatment the Veteran's wife reported that he had problems with anger management and sometimes threw furniture but was not violent towards her or their children. She also said that he would get withdrawn and not talk to her for weeks at a time. The Veteran said that he had chronic insomnia and nightmares from combat. He avoided reminders of combat and he had an exaggerated startle response. On examination he was alert and oriented. There were no delusions or suicidal or homicidal ideation, and insight and judgment were good. After reviewing the evidence of record, the Board concludes that the record does not show occupational and social impairment with reduced reliability and productivity, as is required for a 50 percent evaluation, the next highest available. The Veteran has reported some difficulty getting along with his boss that he enjoys working alone. However, the Veteran has maintained full time employment and was promoted around January 2013. The treatment records and examination results show that his thought process has been clear and unremarkable, that his judgment and insight have been intact, and that there has not been any impairment of memory. The April 2009 VA examiner felt that the Veteran had signs and symptoms that were transient or mild and decreased work efficiency and ability to perform occupational tasks during period of significant stress. The May 2013 VA examiner felt that the Veteran had 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. These evaluations do not show that level of severity consistent with a 50 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9433. While the Veteran has had impaired impulse control, he has consistently employed successful strategies to avoid the situation escalating. He reported at the May 2013 examination that he went to the gym as an outlet for his anger. At May 2013 treatment the Veteran reported stress related to various facets of his life, and the treating provider felt that the Veteran was managing fairly well and that his situation at home had improved. The Board has considered the GAF scores assigned during the course of the period under review. The scores have ranged from 60 to 65. A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulty in social, occupational of school functioning (e.g., occasional truancy or theft within the household) but generally functioning pretty well, with some meaningful interpersonal relationships. See Quick Reference to the Diagnostic Criteria from DSM-IV, Washington, D.C., American Psychiatric Association, 1995. These GAF scores are not consistent with the reduced reliability and productivity required for a 50 percent evaluation. Overall, the record does not show that Veteran's dysthymic disorder has caused the constant reduced reliability and productivity that is contemplated for a 50 percent evaluation. See id. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the severity of the Veteran's dysthymic disorder, since the symptoms they set forth are not all inclusive, and no exceptional or unusual disability picture is demonstrated. The rating criteria are therefore adequate to evaluate the service-connected dysthymic disorder and referral for consideration of an extraschedular rating is not warranted. The Board also has considered whether the Veteran is entitled to "staged" ratings. Based upon the record, the Board finds that at no time during the claim period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the Veteran does not contend nor does the record reflect he is unemployable due to his service-connected dysthymic disorder. In fact, the record shows that the Veteran has worked full time during the claim period. While the record shows that there may be some interference with some job related activities due to the service-connected disability, there is no cogent evidence of unemployability and thus consideration of a TDIU is not warranted. The preponderance of the evidence is against the claim for an initial evaluation in excess of 30 percent for dysthymic disorder. There is no doubt to be resolved, and an increased rating is not warranted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER An initial rating in excess of 30 percent for dysthymic disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs