Citation Nr: 1339643 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-02 140 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating (evaluation) in excess of 50 percent for depressive disorder, NOS. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Buchs, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from April 1969 to April 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the VA Regional Office (RO) in Togus, Maine, which denied an increased rating in excess of 50 percent for the service-connected depressive disorder, NOS. The Veteran resides under the jurisdiction of the RO in Detroit, Michigan, where the appeal was certified to the Board. The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence. In the February 2013 Informal Hearing Presentation, the Veteran, through his representative, claimed that the "drug usage was secondary to the veteran's psychiatric condition." As this is a new claim for secondary service connection, it is not intertwined with the Veteran's increased rating claim on appeal. The issue of secondary service connection for substance abuse secondary to the Veteran's service connected depressive disorder, NOS, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. § 3.310 (2013) (disability which is proximately due to or the result of a service-connected disease or injury shall be service connected). The issue of entitlement to a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Accordingly, the Board has jurisdiction of the issue of entitlement to a TDIU and that issue has been added to the present appeal. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised); VAOPGCPREC 12-2001(further expanding on the concept of when an informal claim for TDIU has been submitted). The issue of TDIU is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. For the entire rating period, the Veteran's depressive disorder, NOS, has been characterized by chronic sleep impairment, anxiety, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, resulting in occupational and social impairment with reduced reliability and productivity. 2. For the entire rating period, the Veteran's depressive disorder, NOS, has not been characterized by 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships. CONCLUSION OF LAW For the entire rating period, the criteria for a disability rating in excess of 50 percent for depressive disorder, NOS, have not been met or more nearly approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans 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, 3.326(a) (2013). VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir, 2009). In this case, a VCAA notice letter sent in April 2008 satisfied the provisions of 38 U.S.C.A. § 5103(a). The Board finds that all necessary assistance has been provided to the Veteran. In June 2008, the Veteran was provided an adequate VA mental disorders examination for compensation purposes. The VA examiner did not have the claims files for review in June 2008; however, the examiner reviewed electronic medical records and the February 2005 VA mental disorders examination for compensation purposes. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In July 2010, the Veteran was notified his requested RO hearing was scheduled for August 2010; however, the Veteran failed to attend. In September 2010, the Veteran was provided a Statement of the Case. A hearing was rescheduled for March 2011, at which time the Veteran agreed that a new VA examination was needed to assess the severity of his depressive disorder. In April 2011 the Veteran was provided with another adequate VA mental disorders examination. The April 2011 VA examiner reviewed the claims files and medical records, noted the Veteran's history in detail, examined the Veteran, and assessed occupational and social impairment, including severity, frequency, and duration of symptomatology, as indicated by a Global Assessment of Functioning (GAF) score. Barr, 21 Vet. App. at 311. Following this examination, the Veteran requested that a rating determination be made based on the evidence of record without a personal hearing. The Veteran was provided with a Supplemental Statement of the Case in April 2011. The Veteran did not file a timely substantive appeal (VA Form 9) within 60 days of the issuance of a September 2010 Statement of the Case. In a December 2010 statement, the Veteran indicated that the Statement of the Case and August 2010 hearing notice were mailed to an incorrect address, and he wished to have his appeal reinstated. The Veteran submitted a VA-Form 9 to perfect his appeal in December 2010, and the RO scheduled a new hearing for the Veteran. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal). Recent correspondence, specifically a January 2013 letter notifying the Veteran that his appeal had been received by the Board, was returned undeliverable. The Veteran has not submitted a change of address form to VA and had not otherwise informed the VA of his whereabouts. It is the Veteran's responsibility to keep VA advised of his whereabouts in order to facilitate the claims process. If he does not do so, "there is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). All reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. The Veteran has not suggested the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Disability Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). In order to evaluate the level of disability and any changes in condition it is necessary to consider the complete medical history of the veteran's condition. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Depressive disorder, NOS, (dysthymic disorder) is rated under Diagnostic Code 9433, and utilizes the General Rating Formula for Mental Disorders, which provides a 50 percent rating 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 (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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130. 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; 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 adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9433. A 100 percent evaluation for depressive disorder 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9433. In evaluating psychiatric disorders, the Board is mindful that the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are 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). The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan, 16 Vet. App. at 442-3. On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan at 443; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (veteran may only qualify for a given disability rating under a diagnostic code by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration). Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging between zero and 100, which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. The GAF score and the 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). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty with social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect 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). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. The GAF scores assigned in a case, however, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue; rather, the GAF score must be considered in light of the actual symptoms of a veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Depressive Disorder Increased Rating Analysis The Veteran contends that his depressive disorder warrants a higher disability rating in excess of 50 percent due to his "sleep disturbance, inability to maintain relationships, [and being] highly transient due to [an] inability to adapt to stressful situations." Additionally, the Veteran states his evaluation should be increased due to his chronic unemployment, "poor judgment as evident by his long-standing substance abuse, poor impulse control as evidenced by his use of heroin," his inability to maintain effective relationships, and his tendency to isolate himself. After a review of all the evidence, lay and medical, the Board finds that, for the entire rating period, the Veteran's depressive disorder has been characterized by chronic sleep impairment, anxiety, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, and occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating, but not higher, under Diagnostic Code 9433. 38 C.F.R. § 4.130. During the June 2008 interview, the Veteran reported symptoms of chronic depression, sleep disturbance, and anxiety. The Veteran was oriented in all spheres, well groomed and casually dressed. The Veteran interacted in a cooperative and attentive manner with unremarkable speech. The VA examiner reported the Veteran had a constricted affect and anxious mood. The Veteran had a short attention span and was not able to count in serial sevens. The Veteran reported having a sleep impairment and becoming irritable in crowds. He understood that he has a problem and the outcome of his behavior. The Veteran reported no delusions or hallucinations and no homicidal or suicidal thoughts. There was no evidence of obsessive or ritualistic behavior. The VA examiner assessed that the Veteran's impulse control was good and there were no episodes of violence. The Veteran reported some slight to moderate problems with daily living activities. The June 2008 Axis I diagnosis was depression NOS/anxiety NOS, alcohol dependence in remission, heroin dependence in remission, cocaine dependence in remission, marijuana abuse in remission, and nicotine dependence. The VA examiner opined that the Veteran's substance use is not related to his anxiety or depression. The VA examiner assigned a GAF score of 52 for the depression NOS and anxiety NOS. During the April 2011 interview, the Veteran reported experiencing anxiety and feeling "sad with no motivation, poor sleep, and hopelessness" on most days. The Veteran stated he was "dependent upon heroin." The Veteran was cooperative, yet irritable, well groomed, appropriately dressed, and oriented in all spheres. The Veteran was lethargic and had slurred speech. The VA examiner reported the Veteran's affect was constricted and mood dysphoric. The Veteran's attention was intact and he was successful in completing serial sevens and spelling in both directions. The Veteran reported a sleep impairment, claiming nightmares of things he saw at Walter Reed Hospital, but did not report any delusions or hallucinations. The Veteran understood that he has a problem and the outcome of his behavior. There was no evidence of obsessive or ritualistic behaviors and no report of homicidal or suicidal ideation. The examiner recorded that the Veteran's impulse control was poor, but there was no indication of violent episodes. The Veteran reported no problems with activities of daily living. The April 2011 Axis I diagnosis was dysthymia and opioid dependence. The examiner opined that the Veteran's depressive symptoms were "most likely being exacerbated by his use of heroin." The VA examiner assigned a GAF score of 55. On review of all the evidence above, the Board finds that, for the entire rating period, the Veteran's depressive disorder has been characterized by chronic sleep impairment, anxiety, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining relationships, and occupational and social impairment with reduced reliability and productivity. The Veteran's psychiatric symptoms have been relatively consistent, and a 50 percent rating takes into account the degree of social and occupational impairment. The Board has weighed and considered the GAF scores during the entire rating period. The GAF score at the June 2008 examination was 52 and the GAF score at the April 2011 examination was 55. GAF scores in this range reflect moderate symptoms or moderate difficulty in social or occupational functioning, which is consistent with the 50 percent disability rating criteria of occupational and social impairment with reduced reliability, and consistent with the symptoms or criterion of difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The Board further finds that the criteria for the next-higher 70 percent rating for depressive disorder have not been met for any period. For the entire rating period on appeal, the Veteran's depressive disorder has not been characterized by 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; 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. While the Veteran noted some slight and moderate problems with activities of daily living in June 2008, he reported none in April 2011, and was found able to function independently at both examinations. The Veteran was oriented in all spheres, understood the outcome of his behavior, and tended to his personal appearance and hygiene appropriately. There was no evidence of suicidal or homicidal ideation, obsessive or ritualistic behavior, violent episodes, or speech intermittently illogical, obscure, or irrelevant. The Veteran reported that most of his family is deceased; however, he maintains some casual relationships with girlfriends. The Board finds the Veteran's nonservice-connected substance abuse has been differentiated from his service-connected psychiatric disorder; therefore, the substance abuse is not considered part of the current or past service-connected psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181 (1998) (stating the Board may not ignore such differentiation where it is of record). On an April 1983 rating decision, the Veteran's alcohol use was found to be willful misconduct. The Veteran was notified in a May 1994 rating decision for nonservice-connected disability pension that his "drug and alcohol abuse is held to be the result of his willful misconduct." The 2008 VA examiner opined that the Veteran's substance use was "unrelated to his anxiety or depression." Although the Veteran has been unemployed for 20 years, the 2011 VA examiner opined that the Veteran's "active substance abuse problems" rather than his service-connected depressive disorder prevented employment. The record demonstrates that the degree of occupational and social impairment due to psychiatric symptomatology manifested by the depressive disorder is encompassed by the 50 percent disability rating criteria. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating in excess of 50 percent for depressive disorder for any period, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for the disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the rating schedule. The schedular rating criteria, Diagnostic Code 9433, specifically provides for disability ratings based on occupational and social impairment as indicated by symptoms, history, and clinical findings. The Veteran's depressive disorder is manifested by occupational and social impairment due to symptoms of chronic sleep impairment, anxiety, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining relationships. These symptoms are accounted for in the rating criteria under 38 C.F.R. § 4.130. The levels of occupational and social impairment are explicitly listed in the schedular rating criteria. In addition, the GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of the symptomatology or overall degree of impairment in occupational and social functioning. 38 C.F.R. § 4.126. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.21(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating in excess of 50 percent for depressive disorder, NOS, is denied. REMAND TDIU The Veteran has indicated that he is unable to maintain employment due to his service-connected psychiatric disability. The record shows that the Veteran has not worked for more than 20 years. During the June 2008 examination, the Veteran reported that his medical issues make it difficult to work, and he "is not good at taking orders." In April 2011, the Veteran stated he could not work due to the effects of his depressive disorder; however, the VA examiner opined that the Veteran's use of heroin interferes with his ability to work and that his long history of polysubstance abuse would have prevented any employment. In a February 2013 statement the Veteran claimed that his drug usage was an attempt to self-medicate in response to his psychiatric disorder. For these reasons, the Board finds that a remand for a VA examination is necessary to help determine whether the Veteran is unable to secure (obtain) or follow (maintain) substantially gainful employment due to the service-connected psychiatric disorder. In addition, because the Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) (2013) , and it is VA's policy to grant a TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations, 38 C.F.R. § 4.16(b) (2013) , the RO/AMC should consider whether the TDIU claim should be sent to VA's Director of Compensation Service for extraschedular adjudication. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the issue of TDIU is REMANDED for the following action: 1. Send the Veteran proper VCAA notice as to what is needed to substantiate a claim for TDIU, and undertake any development necessary before adjudication. Conduct any additional development of this claim in accordance with 38 C.F.R. § 3.159. 2. After completing all indicated development, adjudicate the issue of TDIU, including, if necessary, pursuant to § 4.16(b), referral of the TDIU claim to the the Director of Compensation Service for extraschedular consideration. If the benefit sought on appeal remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case, and give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs