Citation Nr: 1342969 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 09-39 967 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for the period of July 8, 2001, to June 16, 2007, for service-connected Asperger's disorder with social phobia and depressive disorder, not otherwise specified (NOS) (previously evaluated as adjustment disorder with mixed anxiety and depressed mood). REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney-at-Law, and Nancy Foti, Attorney-at-Law ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from October 1999 to July 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the VA RO in Manchester, New Hampshire, which granted service connection for adjustment disorder with mixed anxiety and depressed mood, and assigned an initial disability rating of 20 percent, effective July 8, 2001, to June 16, 2007, and a 60 percent evaluation, effective June 17, 2007. In a May 2013 rating decision, the RO increased the evaluation assigned to this service-connected disability to 100 percent, effective June 17, 2007. Since the RO did not permanently assign the maximum disability rating possible for the entire period of time on appeal, the appeal for a higher evaluation for the period of July 8, 2001, to June 16, 2007, remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran's representative submitted a statement in November 2013, in which it was requested that VA grant the Veteran a 100 percent evaluation dating back to 2001 for his service-connected psychiatric disability or, "[i]n the alternative", consider whether the Veteran is entitled to a 100 percent disability rating pursuant to individual unemployability from 2001 to 2007. In light of the use of the phrase "[i]n the alternative", the Board finds that the grant of the Veteran's claim for a total 100 percent scheduler evaluation for his service-connected psychiatric disability dating back to 2001, as discussed below, is a full grant of the Veteran's claim. If the Veteran believes otherwise, he is free to file a claim for entitlement to an earlier effective date for his previous grant of entitlement to individual unemployabilty. FINDING OF FACT The Veteran's service-connected Asperger's disorder with social phobia and depressive disorder, NOS is manifested by total social and occupational impairment for the period of July 8, 2001, to June 16, 2007. CONCLUSION OF LAW The criteria for a maximum evaluation of 100 percent for service-connected Asperger's disorder with social phobia and depressive disorder, NOS for the period for the period of July 8, 2001, to June 16, 2007, have been met. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9410 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for an increased rating, the benefit sought on appeal has been granted in full, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran seeks entitlement to an increased evaluation for service-connected Asperger's disorder with social phobia and depressive disorder, NOS for the period of July 8, 2001, to June 16, 2007. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected Asperger's disorder with social phobia and depressive disorder, NOS is evaluated under Diagnostic Code 9410. The regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130 (2013). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The criteria for a 100 percent rating are: 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. See 38 C.F.R. § 4.130, Diagnostic Code 9410 (2013). Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also, Richard v. Brown, 9 Vet. App. 266, 267 (1996). A GAF score is, of course, just one part of the medical evidence to be considered and is not dispositive. The same is true of any physician's statement as to the severity of a disability. It remains the Board's responsibility to evaluate the probative value of any doctor's opinion in light of all the evidence of record. After a careful review of the record, and for reasons and bases expressed immediately below, the Board finds that the Veteran's service-connected Asperger's disorder with social phobia and depressive disorder, NOS more closely approximates the criteria for a 100 percent rating for the period of July 8, 2001, to June 16, 2007. 38 C.F.R. § 4.7 (2013). Specifically, the claims file contains an October 2012 medical opinion from a private psychologist who has known the Veteran since 2007. The examiner noted that the Veteran currently exhibits the following symptoms: total occupational and social impairment due to gross impairment in thought processes and ineffective and poor communication ability; persistent distorted belief systems about himself in relation to others and the world around him; intermittent inability to perform activities of daily living and becoming isolated and requiring the company of his dog ; participation in obsessional ritualistic behaviors and thoughts; intermittently irrelevant speech; near-continuous and chronic anxiety or depression affecting his ability to function independently both socially and vocationally or appropriately and effectively express himself with others; a pattern of impaired impulse control when adjusting to situations new and old; difficulty in adapting to stressful circumstances (including anything group-related, dating, work or work like in nature); and a marked inability to establish and maintain effective relationships. The psychologist noted that these symptoms were consistent with chronic adjustment disorder with mixed anxiety and depressed mood. The psychologist determined that, based on her interview with the Veteran, review of his mental health treatment records, and her 5 years of clinical evaluations of the Veteran, he has exhibited the aforementioned symptoms in combination with other symptoms of the same condition continuously from his discharge from the military to the present. Additionally, the psychologist determined that it is more likely that the Veteran first experienced symptoms of adjustment disorder with mixed anxiety and depressed mood while serving in the military. Specifically, his military record shows that he began to exhibit the aforementioned symptoms as a result of increased mental pressure from commanders and his peers, as well as the increase in his vocational tasks required of him and the resulting perception of unexplainable reasons regarding the need for these tasks. He was also more than likely triggered to experience these symptoms due to the military expectations placed on him to fall into what was considered the military "norm" both vocationally and socially. In March 2013, this same private psychologist submitted an addendum, in which she noted that there was a difference clinically in terms of the GAF scoring between evaluator and "treaters". The Veteran presents higher in his GAF score while at the VA than in an overall GAF score during evaluation most likely due to the fact that while he is in treatment at the VA he feels non-threatened, safe, empathized with, trusting, and patience from those who are clinical in nature around him. The VA is a safe environment for him. Therefore, it seems clear that "treaters" in those moments of time would see the Veteran as a higher functioning GAF score. The VA environment seems to provide him with a safe zone that he would not necessarily experience if he were to be functioning in the day-to-day life outside the VA walls. The psychologist noted that, when the Veteran is evaluated and his whole person is taken into account and how his functional levels are or would be outside of the treatment environment of the VA, his GAF score is clearly much lower. The Veteran does not have the ability to adjust and function in the outside world like peers his age. When not at the VA, the Veteran spends most of his time reclusively at home with his dog and away from people. He has obvious and striking inabilities to adjust, transition, and connect with others. Additionally, in support of his claim, the Veteran's mother has submitted statements. In a May 2013 statement, she indicated that, upon his return from service, the Veteran resided with her and his father. His mother indicated that they paid for his housing, care, medical expenses, and clothing. However, when she was diagnosed with breast cancer, it was no longer possible to take care of the Veteran the way they had previously done. The Veteran's mother essentially asserted that the Veteran had extreme symptoms upon his return from service and was only able to get by because of their substantial help and support. For his own part, the Veteran has also asserted that he would not have been able to manage without his parents' substantial help following service. Also, despite his having a master's degree in public administration, the Veteran asserts that he was not able to maintain continuous employment after service. In a May 2013 statement, the Veteran asserted that he was never able to work a full-time, year-round job again since service. His last job was a part-time job at Sears. Therefore, in consideration of the overall picture of the Veteran's service-connected Asperger's disorder with social phobia and depressive disorder, NOS, particularly that the private psychologist found that the Veteran has exhibited his current symptoms continuously from his discharge from the military to the present, that the Veteran has not been able to maintain a full-time job for any extended period of time since his service despite his undergraduate and graduate degrees, and that he and his mother have both contended that the only reason he managed without outside assistance for as long as he did was because of his parents' support, this disability is clearly of such severity as to the result in total social and occupational impairment dating back to July 8, 2001. As such, a 100 percent evaluation is warranted for the Veteran's service-connected Asperger's disorder with social phobia and depressive disorder, NOS for the period of July 8, 2001, to June 16, 2007. The Veteran's Asperger's disorder with social phobia and depressive disorder, NOS does not manifest itself by all of the symptoms listed under 38 C.F.R. § 4.130 as being reflective of a 100 percent evaluation. However, as noted above, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. See Mauerhan, supra. In conclusion, the evidence of record supports an increased rating of 100 percent for the period of July 8, 2001, to June 16, 2007. This is the maximum possible evaluation. Assignment of staged ratings is not for application for the period of July 8, 2001, to June 16, 2007. See Fenderson, supra. ORDER Entitlement to a maximum 100 percent evaluation for service-connected Asperger's disorder with social phobia and depressive disorder, NOS for the period of July 8, 2001, to June 16, 2007, is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs