Citation Nr: 1343359 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-32 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for dysthymic disorder. 2. Entitlement to an initial rating in excess of 10 percent for left shoulder post-operative scar. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to September 2006, and from November to December 2011. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In the March 2008 rating decision, the RO granted service connection and assigned a 10 percent rating for "partner relational problem," effective from September 28, 2006. The March 2008 rating decision also granted service connection for left shoulder post-operative scar; a zero percent rating was assigned, effective from September 28, 2006. In a March 2013 rating decision, the RO recharacterzied the service-connected psychiatric disability as dysthymic disorder and increased the rating to 30 percent, effective September 2006. In that same rating decision, the RO increased the rating for the service-connected left shoulder scar to 10 percent, also effective September 2006. As the Veteran is in receipt of less than the maximum schedular rating for these disorders, the matters therefore remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the entire initial rating period, the Veteran's dysthymic disorder has been manifested by anger management issues, short-term memory problems, hypervigilance, and trouble sleeping; the disorder is not manifested by occupational and social impairment with reduced reliability and productivity. 2. For the entire initial rating period, the Veteran's left shoulder post-operative scar has been manifested by complaints of pain and itching, and by clinical findings representative of a superficial scar measuring not more than nine centimeter (cm.) by one cm.; the scar is not shown to be deep (associated with underlying tissue damage) and it does not cause limitation of motion of the left shoulder. CONCLUSIONS OF LAW 1. For the entire initial rating period, the criteria for the assignment of an initial rating in excess of 30 percent for the service-connected dysthymic disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1 , 4.2, 4.7, 4.130, Diagnostic Code 9433 (2013). 2. For the entire initial rating period, the criteria for the assignment of an initial rating in excess of 10 percent for the service-connected left shoulder post-operative scar have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801 -- 7805 (2006, 2008, 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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 evaluations following the grants of service connection. 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 claims, which is not abrogated by the granting of service connection. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA examinations have also been conducted to assess the severity of the Veteran's disabilities, including most recently in January 2013. The VA examination reports are adequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The duties to notify and assist have been met. Laws and Regulations The Veteran seeks increased initial ratings for his service-connected dysthymic disorder and post-operative left shoulder scar. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran submitted a claim seeking service connection for, in pertinent part, the service-connected disabilities now on appeal, in November 2006. See VA Form 21-526. A January 2007 VA outpatient treatment record notes that the Veteran was nine months status post Weaver-Dunn shoulder procedure. The Veteran reported that he was essentially pain free, and able to do activities of daily living without difficulty. A July 2007 VA outpatient treatment record noted that the Veteran was able to flex his left shoulder to 180 degrees, with no guarding. A well healed pink scar on the anteriorsuperior left shoulder was noted to be nine cm. by .5 cm. The scar was not tender, and was without adherence and keloid formation. The report of an August 2007 VA mental disorders examination shows that the Veteran gave a history of attending marriage counseling in 2005 or 2006. The Veteran reported some occasions where he became irritated at work. He added he was having problems with anger with his wife. Mental status examination showed no impairment of thought process or communication or of delusions or hallucinations. His behavior was appropriate, and the Veteran denied suicidal and homicidal ideation. The Veteran did complain of short-term memory problems; he denied panic attacks. Speech was normal. The Veteran did admit to having some impaired impulse control problems due to his bouts of anger. The diagnosis was partner relationship problem. A GAF score of 60 was provided. The examiner described the severity of the diagnosed disorder as being mild to moderate and commented that the effects of the condition were not severe enough to interfere with occupational and social functioning. A November 2007 VA mental disorders examination to evaluate the Veteran for PTSD report shows that the Veteran reported some sleep difficulty, as well as problems involving irritability. Examination showed affect showing a full range, including anger, near-tearfulness, sarcasm, and joking. Thought processes were logical and goal directed. He denied hallucinations and delusions. The Veteran did report problems with anger. The Veteran was oriented times three, and insight and judgment was fair. He did show some short-term memory loss. The examiner noted that the Veteran did not meet the criteria for a diagnosis of PTSD. No Axis I diagnosis was provided, but a GAF score of 65 was assigned. A January 2009 VA mental health evaluation note includes a diagnosis of depressive disorder, not otherwise specified, and rule out PTSD. The Veteran was alert and oriented times three. Speech volume was somewhat quiet, with a normal rate, and monotone rhythm. Mood was described as irritating, and affect showed some blunting. A May 2009 VA outpatient psychology individual therapy note showed symptoms including dysthymic mood, muted affect, and hypervigilance. Speech was muffled with a normal pace. Thought disorder was not present. The Veteran denied both suicidal and homicidal ideation. Insight was good. A January 2010 VA outpatient psychology individual therapy note shows that the Veteran continued to complain of anger and irritability. Mental status examination showed him to be alert and oriented times four, with no suicidal or homicidal ideation. Mood was described as stable. The report of a March 2010 skin examination shows that the Veteran had a scar on his left shoulder, which followed shoulder repair surgery. The Veteran complained of tenderness and itching. He gave no history of breakdown of the scar. He also denied pain. The Veteran asserted he could perform any left shoulder movement. Examination showed the scar to be linear in nature, and pink in color. No evidence of breakdown was observed. It appeared to be well-healed. The scar measured nine cm. in length and about one cm. in width. In the center of the scar was a second scar which appeared to have come from a second surgery. The examiner commented that, in other words, the second surgery was done over the original scar, and only over the medical portion of the original scar did the second scar appear to be visible. Otherwise, the second scar was totally contained within the initial scar. Examination showed the scar to be mildly tender to palpation; itching was not present. No skin breakdown was observed. The examiner commented that while the scar was originally deep, no areas of soft tissue damage or any underlying change over the scar was apparent. The scar was well-healed. On movement testing, no tenderness nor pain was elicited. An April 2010 VA mental disorders examination report includes a diagnosis of relationship conflict, rule out adjustment disorder related to marital conflict. A GAF score of 65-70 was included. Mental status examination showed the Veteran to be casually dressed, and pleasant and cooperative. Speech was normal, and there was no evidence of hallucinations or delusions. The Veteran did report problems assigned with anger. The examine commented that the Veteran did not identify any issues related to general anxiety, tension, nervousness. He also did not have panic attacks. The Veteran did complain of trouble sleeping. The examiner added that no major depressive or anxiety disorders could be identified. A March 2011 VA mental health outpatient psychiatry medication management note shows that the Veteran reported that his mood was stable and calm with the use of Sertraline. Increased irritability was noted when he missed a dose. His relationships with his children were good. The Veteran was alert and oriented, with good grooming and hygiene. Speech was normal. Mood was calm and affect was noted to be fairly euthymic. The report of a January 2013 VA scars examination report shows that the Veteran reported having a tender scar on his left shoulder which followed left shoulder surgery. He described the pain as four to five, out of 10. One painful scar was present. The scar was not unstable, and did not have frequent loss of skin over the scar. The scar was not noted to be both painful and unstable. The Veteran's left upper extremity was noted to be affected by the scar; the scar measured 9 cm. by .5 cm. The scar was described as superficial and non-linear. The total area of the scar was noted to be 4.5 cm. The left shoulder scar did not result in any functional limitation. The Veteran was also afforded a VA mental disorders examination in January 2013. The examination report shows that dysthymic disorder was diagnosed. A GAF score of 61 was provided; the examiner commented that this GAF score was consistent with functional difficulties consistent with a decrease in social expectations/roles and work performance only during periods of significant stress. Mental status examination noted that the Veteran reported his mood as being dysphoric/stable. Affect was consistent with reported mood and content. The Veteran denied any thoughts of suicide, and no evidence of gross impairment due to a formal thought, speech, or cognitive disorder was reported. The Veteran informed the examiner that he was planning on filing for divorce from his wife. The Veteran reported monthly contact with friends. He described certain hobbies, to include four-wheeling and snowboarding. The Veteran informed the examiner that he was no longer taking psychiatric medications. The Veteran was noted to currently be employed by VA. The examiner noted the presence of one psychiatric-based symptom, depressed mood. The examiner summarized the level of the Veteran's occupational and social impairment as being 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 medication. Analysis Dysthymic Disorder The Veteran's dysthymic disorder is currently evaluated as 30 percent disabling, under 38 C.F.R. § 4.130, Diagnostic Code 9433. Although the Veteran is of the belief that his service-connected psychiatric disorder is more along the lines of posttraumatic stress disorder (PTSD) (see August 2010 VA Form 9), both dysthymic disorders and PTSD are rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under Diagnostic Code 9433, a 30 percent rating is warranted for 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/or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating contemplates 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 a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when 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. Id. The above set of symptoms is not an exclusive or exhaustive list, as evidenced by use of the phrase "such symptoms as," followed by a list of examples. So, rather, it serves as merely an example of the symptoms that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In determining whether the Veteran meets the criteria for a higher rating, the Board must consider whether he has deficiencies in most of the following areas: work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11 (2001). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scaled rating 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), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The higher the score, the higher the overall functioning of the individual is. After considering all of the evidence of record, including pertinent VA outpatient treatment records, and the reports of VA mental disorders examinations dated in August and November 2007, April 2010, and January 2013, the Board finds that the Veteran's psychiatric disorder does not warrant a rating in excess of 30 percent at any time from September 28, 2006. In this regard, for the applicable period of time, the medical evidence fails to demonstrate that the criteria set out in 38 C.F.R. § 4.130 (Diagnostic Code 9433), and necessary for the assignment of a 50 percent rating, have been met. Of particular note, review of the psychiatric-based medical evidence fails to demonstrate that the Veteran suffered from symptoms such as circumstantial, circumlocutory, or stereotyped speech, panic attacks (occurring more than once a week), difficulty in understanding complex commands, impairment of long-term memory, impaired judgment, or impaired abstract thinking. Further, GAF scores of 60, 65, 65-70, and 61 were supplied, respectively, in August 2007, November 2007, April 2010, and January 2013. A GAF of 51-60 indicates 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 of 61-70 indicates 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 with some meaningful interpersonal relationships. See DSM-IV at 46-47. The January 2013 examiner specifically characterized the Veteran's psychiatric symptoms as being mild or transient but causing occupational and social impairment with decrease in work efficiency and occupational tasks only during periods of significant stress. The Board also finds noteworthy that the Veteran informed a VA examiner in January 2013 that he was no longer taking medications for treatment of psychiatric-based problems. "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." See Vazquez-Claudio. The areas referenced by a 50 percent rating under § 4.130 are occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. The evidence here does not show that the symptoms of the Veteran's service-connected psychiatric disability are of sufficient severity and frequency to approximate that level of impairment. Therefore, the Board concludes that an increased rating is not in order at any time during the appeal period. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert. Left Shoulder Post-Operative Scar The regulations pertaining to rating skin disabilities were revised, effective October 23, 2008. Those revised provisions are applicable only to claims received on or after October 23, 2008. However, although the current claim was received prior to that date, the record reflects that the Veteran has also been rated under the new regulations, and thus, the Board finds that a request for rating under the new regulations has been made and that both apply in this case. 73 Fed. Reg. 54708 (Sept. 23. 2008). Specifically, the March 2013 rating decision considered the new regulations. See also July 2010 Statement of the Case. The Board finds that, in addition to Diagnostic Code 7804, under the old criteria, Diagnostic Codes 7802, 7803, and 7805, are also applicable to the Veteran's claim, and under the new criteria, Diagnostic Codes 7802, 7804, and 7805, are applicable to the Veteran's claim, because those criteria contemplate scars other than of the head, face, or neck. The scar has not been described as deep or limiting motion such that 7801, old and new, does not apply. Under the criteria in effect prior to October 23, 2008, Diagnostic Code 7802 provides for a 10 percent rating for a scar other than on the head, face, or neck, that is superficial and that do not cause limitation of motion and measures an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). Under the criteria in effect since October 23, 2008, Diagnostic Code 7802 provides for a 10 percent rating for a scar other than on the head, face, or neck, that is superficial and nonlinear and measures an area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2013). Under the criteria in effect prior to October 23, 2008, Diagnostic Code 7803 provides for a maximum 10 percent rating when there are superficial, unstable scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2008). Under the criteria in effect prior to October 23, 2008, Diagnostic Code 7804 provides for a 10 percent rating for superficial scars that are painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Under the criteria in effect since October 23, 2008, Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent evaluation is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). If one or more scars are both unstable and painful, 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Note (2). Under the criteria in effect prior to October 23, 2008, Diagnostic Code 7805 provides for scars, other, to be rated based upon limitation of motion of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Under the criteria in effect since October 23, 2008, Diagnostic Code 7805 provides for other scars to be evaluated by any disabling effects not considered in a rating provided under codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). After considering all of the evidence of record, including particularly clinical findings set out as part of VA scar examination reports dated in March 2010 and January 2013, the Board finds that the Veteran's left shoulder post-operative scar does not warrant a rating in excess of 10 percent at any time from September 28, 2006. Both the March 2010 and January 2013 VA skin examinations revealed a left shoulder scar, measured no larger than nine cm. by approximately one cm. Neither examiner observed adherence to underlying tissue, limitation of motion due to the scar, loss of function, underlying soft tissue damage, skin ulceration, breakdown over the scar, underlying tissue loss, induration, inflexibility, or elevation of the scar. There was no disfigurement of the head, face, or neck. The texture of the scar was normal. The examination reports do, however, note complaints and findings of itching and pain. With regard to lay evidence, the Veteran has stated that his left shoulder scar causes pain, tenderness, and itchiness. Overall, the evidence of record does not support a higher rating above 10 percent. 38 C.F.R. § 4.7. Initially under the old and new criteria, the Veteran does not contend, and the objective evidence does not demonstrate burn scars, scars due to other causes, or disfigurement on the head, face, or neck with one characteristic of disfigurement (Diagnostic Code 7800). Compare 38 C.F.R. § 4.118 (2013) with 38 C.F.R. § 4.118 (2008). In addition, under the old criteria, the probative evidence of record does not demonstrate a deep scar or one that causes limited motion exceeding 77 square cm. (Diagnostic Code 7801), or a scar causing limitation of function of an affected part (Diagnostic Code 7805). Moreover, the Veteran is already receiving the maximum 10 percent rating available under Diagnostic Code 7804 for a superficial, painful scar. 38 C.F.R. § 4.118 (2008). In addition, under the new criteria, the probative evidence of record does not demonstrate burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 77 sq. cm. in area but less than 465 sq. cm. (Diagnostic Code 7801); or, a separate rating for any disabling effects not considered under Diagnostic Codes 7800-7804 (Diagnostic Code 7805). The Veteran is already receiving a 10 percent rating under Diagnostic Code 7804 for one scar that is unstable or painful. The probative evidence of record only reflects a single (on one occasion two scars, see March 2010 VA scars examination report), painful scar, but not a scar that is deep or causes limitation of motion. VA examiners have not assessed breakdown over the scar or underlying tissue loss. Also, all VA medical records (outpatient and examination reports) fail to reveal an "unstable" scar. 38 C.F.R. § 4.118 (2013). Therefore, Diagnostic Code 7804 remains the most appropriate diagnostic code to rate the Veteran's left shoulder scar disability. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Therefore, the Board concludes that an increased rating is not in order at any time during the appeal period. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert. Extraschedular Consideration The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disabilities. The Veteran's psychiatric disability is manifested by impairment in social and occupational functioning; the rating criteria specifically contemplate these impairments. His left shoulder scar covers a described area of his body and is manifested by complaints of itching and pain; symptoms specifically contemplated by the rating criteria. As discussed above, there is a higher rating available under the applicable diagnostic codes, but the Veteran's service-connected disabilities now being evaluated are not productive of the manifestations that would warrant the respective higher rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 30 percent for dysthymic disorder is denied. Entitlement to an initial evaluation in excess of 10 percent for left shoulder post-operative scar is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs