Citation Nr: 1336575 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 08-06 867A ) DATE ) ) On appeal from the Department of veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected depressive disorder prior to September 12, 2012. 2. Entitlement to an initial evaluation in excess of 70 percent for the service-connected depressive disorder beginning on September 12, 2012. REPRESENTATION Appellant represented by: Paralyzed veterans of America, Inc. ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The veteran served on active duty from July 1991 to June 1992. These matters initially came before the Board of veterans' Appeals (Board) on appeal from a November 2006 rating decision of the RO. In February 2011 and August 2012, the Board remanded the matter for additional development. In a January 2013 rating decision, the evaluation assigned to the service-connected depressive disorder was increased to 70 percent, effective on September 12, 2012. As less than the maximum benefit was awarded, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The claim has been characterized as shown on the title page to depict the staged ratings assigned. The Board has considered documentation included in Virtual VA. FINDINGS OF FACT 1. For the period of the appeal prior to September 12, 2012, the service-connected depressive disorder is shown to have been productive of a disability picture that more nearly approximated that of occupational and social impairment with reduced reliability and productivity due to symptoms that include flattened affect; disturbances of motivation and mood; and difficulty in establishing or maintaining effective work and social relationships. 2. For the period of the appeal beginning on September 12, 2012, the service-connected depressive disorder is not shown to be productive of a disability picture manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 50 percent disability rating, but no higher, for the service-connected depressive disorder prior to September 12, 2012 were met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.7, 4.130 including Diagnostic Code (DC) 9435 (2013). 2. The criteria for the assignment of a rating in excess of 70 percent for the service-connected depressive disorder beginning on September 12, 2012 are not met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130 including Diagnostic Code (DC) 9435 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letters from the RO dated in November 2002 and April 2004 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. An October 2009 letter additionally provided him with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for final resolution of the issues on appeal has been obtained. The service treatment records and post service treatment records have been obtained. He has been afforded the opportunity for a personal hearing. He has been afforded VA examinations. The Board is further satisfied that the RO has substantially complied with its August 2012 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the RO afforded the veteran an additional opportunity to submit more evidence, and provided a VA examination. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that the Veteran filed a claim of service connection for a psychiatric disorder in 2002. In a January 2003 rating decision, the claim was denied. The veteran appealed the January 2003 rating decision to the Board. In September 2006, the Board granted service connection for the psychiatric disorder. This decision was implemented by the RO in a November 2006 rating decision. The Veteran was assigned a disability rating of 10 percent, effective on July 2, 2002. The veteran appealed this decision, and the present appeal ensued. While a reduction of the Veteran's 10 percent rating was proposed in a May 2008 rating decision, a final reduction was not implemented. Rather, the 10 percent rating was continued in an August 2008 rating decision. In February 2011 and August 2012, the Board remanded the case for additional development of the record. In January 2013, the RO increased the rating for the service-connected depressive disorder to 70 percent, effective on September 12, 2012. As the Veteran has appealed the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. See Fenderson v. West, 12 Vet. App. 119 (1999). The disability rating for the service-connected depressive disorder has been assigned pursuant to Diagnostic Code (DC) 9435. However, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula. See 38 C.F.R. § 4.130. Pursuant to the current General Rating Formula, a 10 percent rating is assigned for 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 assigned 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 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 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 of long and short-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing or maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as school, work, family relations, judgment, thinking, mood, due to such symptoms as: suicidal ideation; obsessive 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 to personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to symptoms such 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. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM- IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." A GAF score ranging from 31 to 40 reflects 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). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 61-70 contemplates 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. The Board has reviewed all of the evidence in the claims file and Virtual VA electronic files. 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 will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background In June 2002, the Veteran described his mood as chronically edgy and irritable. He stated that he would scream and yell, but denied physically acting out. He lived with his parents. He was sad and had crying spells. He isolated himself, felt worthless and hopeless, and had fleeting suicidal ideation. He admitted to thoughts of shooting himself, gassing himself, or overdosing. On examination, the Veteran was alert, oriented and had coherent thought processes. Cognition, insight and judgment were fair. There was no homicidal ideation. He had no hallucinations. His GAF score was reported as being 45-50. In another record of June 2002, the Veteran reported fleeting feelings of suicidal ideation. He denied hallucinations. His concentration was moderately impaired. Abstract thinking and judgment were unimpaired. His problems with memory and concentration reflected a high-moderate degree of depression. He was assigned a GAF score of 35. On VA examination in December 2002, it was noted the Veteran had been arrested numerous times for temper control problems. These incidents involved bar fights and confrontations with co-workers. He had been fired from his job as a truck driver in 1998 after being charged with aggravated assault of a fellow employee. The charges were dropped. He reported that he was not married. On examination, the Veteran was alert, oriented and in good contact with reality and showed no psychosis. He expressed frustration and anger with VA. There was no suicidal ideation. Memory was intact. Insight was lacking, but judgment was fair. The examiner assigned a GAF score of 85. The Veteran was noted to be competent and employable. In May 2003, the Veteran's mood was noted to be blunted. He was sad, frustrated, worried and irritable. He was casually dressed and neatly groomed. His speech was slow and monotone. His GAF score was 55. On VA examination in August 2003, the Veteran reported always feeling depressed and irritated. He expressed anger with VA. He reported having sleep disturbances. He reported contemplating suicide. He denied homicidal ideation. He reported being engaged and having a couple of close friends, but avoiding groups. On examination, the Veteran was alert and oriented. Grooming, hygiene and dress were appropriate. Psychological testing suggested fabricated symptomatology. The Veteran was assigned a GAF score of 90. The VA examiner stated that he had a generally functional lifestyle and was successfully attending school and work. The examiner felt the veteran's start of psychiatric treatment corresponded only to his application for compensation benefits. He was employable. In May 2004, the Veteran reported having had thoughts of suicide, but would not act on them. He felt sad, hopeless and irritable, and as if he was being punished. In July 2004 and August 2004, the Veteran reported having crying spells, a lack of memory and concentration, and no self-confidence. The examiner found he met the criteria for recurrent major depression in the mild to moderate range, with sleep disturbance, decreased memory and concentration, hopelessness, and occasional helplessness and crying spells. His GAF score was 55. In September 2005, the Veteran was noted to be alert and oriented. His thoughts were focused, and his speech was clear. He reported that his depression was 8 out of 10. He denied having suicidal or homicidal ideation. His GAF score was 60. On VA examination in March 2008, the Veteran reported not going to bars anymore due to his history of fighting. He reported numerous symptoms, which the examiner felt were not consistent with the discussion and indicative of his knowledge of what would be required for an increased rating. He had a girlfriend. On examination, the Veteran was alert and oriented. His thought processes were relevant and coherent. There was no thought disorder, hallucinations or delusions. Speech was normal. There was no suicidal ideation or homicidal ideation. Motivation was poor. Insight was limited. Judgment was fair. The Veteran was assigned a GAF score of 80. He was found to be fully employable. The examiner stated that his symptoms were in remission. In April 2008, the Veteran reported not wanting to go out in public and feeling like people were talking about him. Memory and concentration were reduced. He was socially withdrawn. He was irritable most of the time. He had a girlfriend. He was not suicidal, homicidal or delusional. In June 2008, the Veteran reported feeling drained and depressed. He was taking Wellbutrin. The examiner stated that "[he] suspect[ed] that given the severity & duration of his depression that he would be eligible for an increase." In April 2009, the Veteran was noted to have a monotone voice. He had lost 20 pounds and reported having no pleasurable activities. He was socially isolated except for his girlfriend. He reported having discussed marriage with his girlfriend, but the examiner noted that "his depression level suggest[ed] that he [was] not ready to take on a new project such as marriage, that he lack[ed] the energy & desire to take on more challenges." In November 2009, the Veteran reported missing work frequently due to psychiatric symptoms. He had been placed on an attendance management plan. He was depressed. On examination, he had no suicidal or homicidal ideation. In December 2010, the Veteran reported feeling depressed and unhappy in interpersonal relations. He reported having one co-worker whom he trusted and who was supportive. He reported having mood swings. On examination, there was no suicidal ideation. The Veteran was noted to be oriented. There was no evidence of a thought disorder. He was assigned a GAF score of 55. In October 2011, the Veteran denied having suicidal and homicidal ideation. He reported not being overly sad, and being social. On examination, he appeared neat and relaxed. He was fully oriented. He had good attention and concentration. There were no delusions. Insight and judgment were intact. He was assigned a GAF score of 62. In July 2012, the Veteran displayed appropriate grooming. His attitude was cooperative and interactive. Speech was normal. He denied having suicidal or homicidal thoughts. He denied having hallucinations or delusions. The thought processes were logical and goal directed. Memory and concentration were intact. He was oriented. Insight and judgment were fair. The Veteran was assigned a GAF score of 57. On VA examination in September 2012, the Veteran's symptoms included a depressed mood, anxiety, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, suicidal ideation, and neglect of personal appearance and hygiene. He spoke quietly and without confidence. He was frustrated and irritable. It was noted that he had married in 2009, but was separated. He had no children. The Veteran was found to have occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. He was assigned a GAF score of 57. In November 2012, the Veteran had no suicidal or homicidal ideation. He was tired. His wife was pregnant with twins. He sought advice on how to make her feel better. He had appropriate grooming and dress, was alert and oriented, had good insight and was logical. His GAF score was 57. Analysis As discussed, the record shows the Veteran had difficulty going to work. His impairment in family relations is illustrated by his separation from his wife. His impairment in judgment and mood was evidenced by his outbursts of anger, which had resulted in assault charges in the past. The record demonstrated symptoms such as suicidal ideation, depression affecting his ability to function, impaired impulse control, difficulty in adapting to stressful circumstances, and some difficulty with relationships. However, the Veteran's GAF scores have ranged in the 50's and 60's for the most part during the course of the appeal. The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). Despite having some problems at work, the record shows that the Veteran had been able to maintain employment. Indeed, at the recent VA examination of September 2012, the examiner noted the Veteran was employed as a nurse and taught CPR. While the Veteran is shown to have suffered from social isolation and interpersonal problems, he had been married and reported having friends and girlfriends. He reported feeling close to a co-worker. Despite his separation from his wife, it appeared he was trying to help her with the pregnancy in 2012. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood; and difficulty in establishing or maintaining effective work and social relationships. The Veteran's GAF scores are not shown to be of the severity contemplated for an evaluation higher than 50 percent. Moreover, there is no evidence of such symptoms as a gross impairment in thought processes or communication, persistent hallucinations or delusions, disorientation to time or place, or memory loss for names of close relatives, own occupation, or his own name. The Board acknowledges that the Veteran had displayed inappropriate behavior by his fights, was a danger of hurting himself or others, and had some difficulty in attending work on occasion. These manifestations, however, do not warrant the assignment of higher than a 50 percent rating for the initial period of the appeal. Finally, on review of the entire record in this case, the September 2012 VA examiner determined that the service-connected disability was manifested by "occupational and social impairment due to mild or transient symptom which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication." In reaching this decision, the Board has specifically considered the Veteran's statements. The Veteran is competent to report the manifestations of his disability. However, competence and credibility are different matters. Here, the record contains volumes of evidence, and to the extent he may assert that he currently is experiencing total social and occupational impairment, these statements are generally inconsistent with the more probative findings of the examiners. In sum, the assertions are inconsistent with and less probative than the evidence that is provided by medical professionals. The findings of medical professionals, given their experience, education, and experience, are given more weight than the lay statements. The criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support a higher rating than that already assigned. The Board has also considered whether the veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the veteran's depressive disorder. The threshold factor for extraschedular consideration is a finding that the evidence presents an exceptional or unusual disability picture so that the established criteria for rating the service-connected disability are rendered inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are "exceptional or unusual" factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the veteran's disability level and symptomatology, as they address various symptoms and their effect on functioning, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, the Board must consider whether an inferred claim for a total compensation rating based on individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, as noted, the record shows the veteran is employed. As such, Rice is not applicable. ORDER An increased initial rating of 50 percent, but no higher for the service-connected depressive disorder for the period of the appeal prior to September 12, 2012 is granted, subject to the regulations governing the payment of monetary benefits. An increased initial rating in excess of 70 percent for the service-connected depressive disorder beginning on September 12, 2012 is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of veterans' Appeals Department of veterans Affairs