Citation Nr: 1336829 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 11-26 567A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating in excess of 10 percent for a psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to December 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an November 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which continued a 10 percent rating for depressive disorder with anxiety. FINDING OF FACT The Veteran's mental disorder has not manifested more than 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. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a depressive disorder, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130 Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a September 2010 letter, that informed the Veteran of the evidence needed for an increased rating. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication of the May 2011 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. In October 2010, the VA obtained an examination of the Veteran. That examination is found to be adequate for rating purposes of the issue adjudicated in this decision. The examiner reviewed the Veteran's medical history and complaints, made clinical observations, and provided opinions regarding the severity of the disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities. When making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). This appeal arises from a rating decision that denied an increased rating for depressive disorder. As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted. Fenderson v. West, 12 Vet. App. 119 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2008). The relevant temporal focus is on the evidence concerning the state of the disability from the period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2008). Psychiatric Disability Criteria for rating disability due to a depressive disorder are found in the General Rating Formula for Mental Disorders, at 38 C.F.R. § 4.130 (2013). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a) (2013). In addition, the rating must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b) (2013). For service-connected mental disorders, a 10 percent rating is warranted when the disorder is manifested by 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2013). A 30 percent rating is warranted when the disorder is manifested by 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). 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2013). A 50 percent rating is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2013). A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2013). A 100 percent rating is warranted where there is 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders (2013). The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only 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 (2002). VA considers psychiatric disabilities based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. §§ 4.125, 4.130 (2013). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). GAF scores ranging between 41 and 50 are assigned when there are 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). GAF scores ranging between 31 and 40 are assigned when there is 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). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th. ed. (1994). At an October 2010 VA examination, the examiner noted that the Veteran was prescribed citalopram for his depression but otherwise was not undergoing any other treatments, such as therapy. The Veteran reported no significant major illness or hospitalization due to depressive disorder in the past three years. The Veteran reported to the examiner that there are times when he felt really fine and then moments when he felt depressed and that life was hopeless. He also reported that he had difficulty concentrating and thought that his depression has gotten worse due to a hernia surgery he underwent while in service, that had limited some of the physical activities that he was able to perform. The examiner described the Veterans appearance as cleaned and neatly groomed. The Veteran's attitude towards the examiner was noted as cooperative, friendly, relaxed, and attentive. The Veteran was found to be spatially oriented and he suffered from no delusions. The Veteran reported that he only slept three to four hours a night but, during his days off, he could sleep all day. The examiner found that the Veteran did not meet the DSM-IV criteria for a sleep disorder. The examiner noted that the Veteran had no obsessive or ritualistic behaviors and did not have panic attacks or suicidal ideations. The Veteran spent time with his three year old daughter. The Veteran lived with a roommate and was currently taking 12 hours of classes at a university. The Veteran was also employed, and when he is not working or in school, he exercised. The Veteran reported that he spent time with his family on occasion and a few times a month spent time out with a friend. The examiner reported that the Veteran's remote, recent, and immediate memory were normal. The examiner diagnosed the Veteran with depressive disorder as an Axis I diagnosis. The examiner assigned a Global Assessment of Functioning score of 70, indicative of mild symptoms. The examiner concluded the report by finding that there was only a mild decrease in the ability of the Veteran to perform occupational task due to periods of increased stress and transient symptoms of his depressive disorder. In October 2011, the Veteran submitted a statement that he had poor impairment of long and short term memory, abstract thinking, mood issues, and difficulty with social relationships. He also reported that he had experienced two panic attacks since he was discharged from service in 2005 and did not report that to the examiner because he was embarrassed. The Veteran further stated that since he has at least half of the symptoms for a 50 percent rating and some of the symptoms for a 30 percent rating that he should be rated 40 percent. The Veteran concluded his statement by reporting that he was still taking Venlafaxine and being treated by a VA physician for depression. The Board has reviewed the evidence of record and concludes that the Veteran's service-connected psychiatric disability does not more nearly approximate the criteria for a rating higher that the 10 percent already assigned for any period of time on appeal. Although the Veteran stated that he has some of the symptoms of a higher rating, his reports must be weighed against other evidence of records, most notably the expert evidence from the October 2010 VA examination. The Board finds that the October 2010 VA examination to be most probative in the finding that a rating higher than the Veteran's current rating of 10 percent is not warranted. The examiner found that there was no occasional decrease in work efficiency and there were no intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms. The occupational and social impairment currently exhibited by the Veteran was found to conform more to a lower impairment which was consistent with his current 10 percent rating such that his disability that was found to be mild would decrease his work efficiency and the ability to perform occupational tasks only during periods of significant stress. Therefore, the Board finds that a higher rating than 10 percent is not supported by the evidence. Although the Veteran stated in the VA Form 9 that he suffers memory problems, the examiner concluded that Veteran's memory was normal and that he was able to relate information from the remote, recent, and immediate past. While the Veteran stated that he forgot where he puts his keys sometimes, the Veteran himself reported that may be related to him doing many things. The Board concludes that the Veteran does not have long or short term memory impairment. The occasional forgetfulness does not meet the criteria for a rating of higher than 10 percent. The Board has also considered the Veteran's statements that he currently experiences mood issues, panic attacks, and difficulty with social relationships at times. However, when weighed against the Veteran's reports to the examiner and the examiners conclusions, those reports do not approximate the criteria for a rating higher than 10 percent. None of the symptoms that the Veteran reported in statements to VA or to the VA examiner rise to the level of impairment regarding his occupational and social relationships that would warrant a higher rating. The Veteran is employed, a student, and maintains family and friend relationships. Also of note is that the Veteran did not state to the examiner that he experienced panic attacks. However, the Veteran later stated that he has had two panic attacks since he was discharged from service in 2005. The two panic attacks within a five year period do not meet the criteria for a higher schedular rating than the current rating assigned to the Veteran of 10 percent. The Board has also considered the statement submitted on behalf of the Veteran by a VA physician on October 2010. The physician, who has been treating the Veteran since August 2010, states that the Veteran suffers from depression and his symptoms include depressed mood, low energy, concentration difficulty, and decreased energy. The Board finds that statement to be of less probative value concerning the Veteran's claim for an increased rating than the VA examination. While the physician's statement provides a diagnosis that the Veteran is depressed, that statement is without any comment on the social and occupational impairment of the Veteran caused by those symptoms. In comparison, the October 2010 VA examiner made a similar finding that the Veteran was depressed, but also expanded on that diagnosis by concluding that the Veteran's symptoms only caused only transient or mild decrease in work efficiency and ability to perofmr occupational tasks only during periods of significant stress. Therefore, the Board finds that October 2010 examination report is more probative than the October 2010 physician statement in finding that a higher rating than 10 percent is not warranted for the Veteran's depression because that examination related the symptoms to the level of occupational and social impairment caused by the symptoms. The Board has considered whether to the address the issue of a total disability rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009); 38 C.F.R. §§ 3.340, 4.16 (2013). However, the Veteran has not stated and the evidence of record does not otherwise suggest that his depressive disorder is sufficiently incapacitating as to prevent him from obtaining and maintaining substantially gainful employment. Rather, the evidence shows that the Veteran is able to work and/or be a university student despite his depressive disorder symptoms. Thus, the Board finds that the issue of entitlement to TDIU has not been raised. 38 C.F.R. §§ 3.340, 4.16 (2013). The Board has also is whether referral is warranted for consideration of an extraschedular rating. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular rating commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criteria for such an award are a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b) (2013). Extraschedular consideration involves a three step analysis. First, the Board must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not contemplate the Veteran's level of disability and symptomatology, then the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. If so, the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determining whether justice requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Board finds that all of the experienced symptoms of the Veteran's depressive disorder are contemplated by the schedular criteria. 38 C.F.R. § 4.130 (2013). The criteria provide examples of the types and degrees of symptoms for each level of compensation and the Veteran's symptoms do not deviate from those types of symptoms or from the severity of symptoms. Essentially, the Veteran has reported anxiety, depression, mood swings, memory problems, panic attacks, and difficulty in social and work relationships. All of those symptoms are consistent with those listed in the schedular criteria. As to the severity of the symptoms, the schedular criteria contemplate the different levels of severity that the Veteran is currently experiencing. Therefore, the Board finds that referral for extraschedular consideration is not warranted. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). In this case, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating in excess of 10 percent for a depressive disorder. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating in excess of 10 percent for a psychiatric disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs