Citation Nr: 1340375 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-12 013A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 50 percent for major depressive disorder. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for major depressive disorder with an initial 30 percent evaluation assigned effective January 8, 2009. FINDING OF FACT The Veteran's major depressive disorder most nearly approximates deficiencies in most areas of work, school, family relationships, thinking, judgment and mood without total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent disability rating, but not higher, for major depressive disorder have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for major depressive disorder was granted in the October 2009 rating decision on appeal with an initial 30 percent evaluation assigned effective January 8, 2009. An increased 50 percent evaluation was awarded in a June 2010 rating decision, also effective January 8, 2009. The Veteran contends that an increased initial rating is warranted as his major depressive disorder is productive of severe occupational and social impairment. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran's service-connected psychiatric disorder is currently evaluated as 50 percent disabling under Diagnostic Code 9434, for major depressive disorder, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The Board notes that the Veteran has also been diagnosed with several nonservice-connected psychiatric disorders, including posttraumatic stress disorder (PTSD) and generalized anxiety disorder. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). As the record does not contain medical evidence specifically differentiating the symptoms associated with each of the Veteran's psychiatric disorders, the Board will consider all his psychiatric symptoms and impairment when determining the proper rating for the service-connected major depressive disorder. The Veteran's current 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 short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted 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 which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation 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; memory loss for names of close relatives, own occupation, or own name. Id. After review of the evidence, the Board finds that an initial 70 percent evaluation is warranted for the service-connected major depressive disorder throughout the claims period. With respect to the schedular criteria, the Veteran has endorsed several of the specific symptoms associated with a 70 percent rating. Examination reports from the Veteran's private psychologist dated throughout the claims period document findings of significant depression, feelings of panic, impaired impulse control with reports of irritability and a short temper, and the Veteran's neglect of his personal appearance during periods of mood disturbance. The October 2009 VA examiner also found that the Veteran experienced fairly serious psychiatric symptoms, including anxiety, depression, panic, difficulty concentrating, and sleep disturbance. The Veteran also manifested a nervous gesture (shaking his arm) during the October 2009 VA examination and the private psychologist identified obsessive-compulsive traits in April 2009. The Veteran's Global Assessment of Functioning (GAF) scores have also established the presence of serious PTSD symptoms associated with an initial 70 percent rating. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2013)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The Veteran's GAF scores have ranged from 50, consistent with serious symptoms, to 39, consistent with major impairment in several areas. Id. The Veteran's private psychologist has characterized his disability and stressors as severe throughout the claims period and the October 2009 VA examiner found that the Veteran demonstrated fairly serious symptomatology. The Board therefore finds that the Veteran's GAF scores most nearly approximate severe symptoms and the criteria associated with a 70 percent evaluation. The Veteran has also clearly endorsed occupational and social impairment that is severe due to service-connected major depressive disorder. He worked full time as a maintenance supervisor at the United States Postal Service (USPS) throughout the claims period, but reported using large amounts of sick and family medical leave due to depression. His workload has been decreased through the years to only include menial tasks, and the private psychologist recommended early retirement in June 2011. In a September 2012 private evaluation, the recommended that the Veteran discontinue employment-although the Veteran continues to work full time. Regarding social impairment, the Veteran divorced from his wife in January 2008 and the private psychologist found that the marriage ended due to the Veteran's severe emotional impairment and short temper. While the Veteran has been involved in another romantic relationship from approximately August 2010, the relationship has been consistently strained due to the Veteran's emotional problems and feelings of inadequacy. The Veteran also reported during the October 2009 VA examination that he had only one close friend. He has consistently experienced social isolation, withdrawal, and problems interacting with crowds and people at work. The criteria for a 70 percent rating for a psychiatric disability are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The record does not document any impairment to thinking or judgment, but VA and private examination reports clearly document impairment to the Veteran's work, school, family relations, and mood. Thus, an initial 70 percent evaluation is warranted throughout the claims period. See Vazquez-Claudio, 713 F.3d at 118. The Board has also considered whether a total schedular rating is appropriate for the Veteran's major depression, but finds that the service-connected disability has not most nearly approximated the criteria for a 100 percent rating under Diagnostic Code 9434 at any point during the claims period. A 100 percent rating is warranted if the service-connected psychiatric disorder causes total occupational and social impairment, regardless of whether the Veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan, 16 Vet App at 442-3; Vazquez-Claudio, 713 F.3d at 118. In this case, the Veteran has clearly not demonstrated total occupational and social impairment. He has continued to work full time at the USPS throughout the claims period and has maintained a few close relationships for several years. Therefore, the preponderance of the evidence is against the assignment of a 100 percent rating for major depressive disorder. The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a total schedular rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (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 extra-schedular 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 extra-schedular 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 Veteran's disability. His major depressive disorder is manifested by symptoms such as severe depression, anxiety, and occupational and social impairment. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate disability and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and has continued to work throughout the claims period. While the Veteran's service-connected major depressive disorder has caused severe occupational impairment, there is no competent lay or medical evidence that it has resulted in unemployability. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected psychiatric disorder. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for major depressive disorder. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and available private medical records. The claims file indicates that the Veteran has received treatment with a private psychologist since December 2007. VA made attempts to obtain treatment records from this psychologist in August 2008, September 2008, and June 2009. No actual records of treatment were received in response to these requests; instead, the Veteran's psychologist has provided summaries of the Veteran's current psychiatric symptoms and functioning throughout the claims period. In July 2013, VA contacted the Veteran and asked him to submit a new consent form to allow for the procurement of treatment records from the private psychologist, but no response to this request was received. It is clear from the above that VA has done its utmost to obtain treatment records from the Veteran's private health care provider and further efforts would be fruitless. The Veteran was also provided a VA examination in October 2009 to determine the severity of his service-connected major depressive disorder. Generally, a veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Psychiatric evaluation reports submitted by the Veteran's private psychologist indicate that the Veteran may have experienced worsening psychiatric symptoms since the October 2009 VA examination. The Veteran was scheduled for a new VA examination in July 2013, but on July 9, 2013 he called VA to cancel the examination and indicated that he wanted to withdraw his claim for an increased rating. In an August 2013 letter, the Veteran was asked to clarify whether he was still willing to report for a VA examination or if he desired to withdraw his appeal. No response to this letter was received. As the Veteran did not specifically withdraw his claim for an increased rating, the claim is still on appeal; however, the Court has held that VA's duty to assist the Veteran in developing the facts and evidence pertinent to a claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of Veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). VA provided the Veteran the opportunity to appear at a VA examination in July 2013 to determine the current severity of his depressive disorder, but the Veteran cancelled the examination and has not responded to VA's request to determine whether he was still willing to report. VA has clearly complied with the duty to assist the Veteran and has attempted to provide a more recent examination. Any failure to develop this claim rests with the Veteran himself. For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. ORDER Entitlement to an initial 70 percent rating, but not higher, for major depressive disorder is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs