Citation Nr: 1509087 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-34 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to increases in the ratings for major depressive disorder (MDD) (currently assigned "staged" ratings of 30 percent prior to March 5, 2013, and 50 percent from that date). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Casey, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1987 to October 1995 and from January 2003 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for MDD, rated 10 percent, effective April 8, 2010. An October 2012 rating decision increased the rating for MDD to 30 percent, also effective April 8, 2010; and a September 2013 rating decision assigned a staged increased rating of 50 percent, effective March 5, 2013. The Veteran had also initiated an appeal of the denial of a total disability rating based on individual unemployability (TDIU). An October 2012 rating decision granted TDIU, effective August 21, 2010. As an April 2013 rating decision awarded the Veteran a schedular combined rating of 100 percent throughout the period under consideration, the matter of a TDIU rating is moot. FINDINGS OF FACT 1. It is reasonably shown that prior to October 18, 2010, the Veteran's MDD was manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; however, symptoms productive of occupational and social impairment, with deficiencies in most areas were not shown. 2. From October 18, 2010, through March 4, 2013, the Veteran's MDD was manifested by symptoms no greater than productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily); symptoms productive of occupational and social impairment with reduced reliability and productivity were not shown. 3. From March 5, 2013, the Veteran's MDD has been manifested by symptoms no greater than productive of occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment, with deficiencies in most areas have not been shown. CONCLUSION OF LAW The Veteran's MDD warrants staged ratings of 50 percent, but no higher, prior to October 18, 2010; 30 percent, and no higher, from October 18, 2010, through March 4, 2013; and 50 percent, but no higher, from March 5, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9434 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; a September 2013 supplemental SOC readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He was afforded VA examinations in October 2010 and March 2013. The Board finds the examination reports adequate for rating purposes as they note all findings needed to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. MDD is rated under the General Rating Formula for Mental Disorders (General Formula). A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Code 9434. 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 complete 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 is warranted when 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 in adapting to stressful circumstances (including work or a worklike 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 of 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. 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from MDD under 38 C.F.R. § 4.130 is not limited to those symptoms listed in the General Formula. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 32. A score of 41 to 50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is appropriate where there are 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 score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Where an appeal is from the initial rating assigned with the award of service connection for a disability, the entire history of the disability must be considered and, if appropriate, separate "staged" ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. April 2010 VA treatment records show that the Veteran reported depression, sleep disturbance, isolation, crying spells, appetite disturbance, anxiety, irritability, anger, stress related to pending job termination, difficulty dealing with people, and decreased concentration, energy, and pleasure. He reported missing work due to sleeping through his night shifts, living separately from his wife, and isolating socially. His mother had died in March; he saw his children on the weekends. On mental status examinations, he was oriented, well-groomed, well-related, and cooperative. His speech was normal and spontaneous. He had an anxious and dysphoric mood, anxious and restricted affect, coherent and goal-directed thought process, grossly intact and alert cognition, intact recent and remote memory, average intelligence, limited insight, and good judgment. There was no psychomotor agitation or retardation. He denied perceptual disturbances, and suicidal and homicidal ideation. There were no delusions. The diagnosis was moderate recurrent major depression. A GAF score of 48 was assigned. On October 18, 2010, VA examination, the Veteran denied remissions and reported daily depression, fatigue, loss of interest in most activities including recreation, crying spells, irritability, anger, difficulty with remembering dates, hypersomnia, poor concentration/indecisiveness, and interpersonal conflicts at work. He shared an apartment with his girlfriend and went out to dinner with her once or twice a month. He had a good relationship with his children. He spent most of his time in his room and had no male friends. On mental status examination, the Veteran was oriented, cooperative, casually dressed, and adequately groomed. He had an average mood, dysphoric affect, and normal speech. There was no impairment of thought process or communication. He denied impaired impulse control, panic attacks, obsessive or ritualistic behavior, and suicidal or homicidal thoughts. His ability to maintain personal hygiene and other activities of daily living was intact. The diagnosis was moderate recurrent MDD. A GAF score of 60 was assigned. The examiner opined that the MDD symptoms produced "transient or mild and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress." January 2012 VA treatment records show that the Veteran had increasing depression and stress regarding family (father in hospital), legal problems with attempt to retire from his job, and relationship problems with his girlfriend. He reported insomnia, low energy, decreased enjoyment, low concentration, and irritability. It was noted that his last psychiatric treatment was in August 2010, and that he had medication prescribed for depression for the past two years, which did not help. October and November 2012 VA treatment records indicate that the Veteran appeared depressed but did not endorse having many or most symptoms of depression. It was noted that he talked of many aspects of his life that were unsatisfactory to him but most seemed to be choices made rather than symptoms of depression. On mental status examination, he was well-groomed, neatly dressed, and cooperative. He had normal speech, mild to moderately depressed mood, congruent but constricted affect, and minimal and appropriate anxiety. His sensorium was alert, clear, and apparently undisturbed. He had coherent and goal-directed thought process, and grossly unimpaired insight and judgment. His concentration, recent and remote memory, and intellect were intact. He did not express suicidal or homicidal intent, hallucinations, or delusions. GAF scores of 60-65 were assigned. A January 2013 VA treatment record indicates that the Veteran reported moderate improvement in mood, energy level, and motivation to be active due to new medication. It was noted that he was not in remission but clearly improved. He continued to have insomnia. There was no significant change on mental status examination from October 2012. A GAF score of 65-70 was assigned. On March 5, 2013, VA examination, the Veteran reported that he had depression daily without any major remissions, diminished interest in activities, fatigue, improved sleep impairment since his prior examination, frequent crying spells, anxiety, poor concentration/indecisiveness, mild memory loss (such as forgetting names, directions, or recent events), and increased paranoia, distress, and hypervigilance. He had disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships. He indicated that he had gotten engaged to his girlfriend. His children visited every 2-3 weeks, and his fiancée's daughter visited every once in a while. He recently had started going to church on Sunday, and would go out to eat with his children every other Sunday when his children were visiting. He spent time with his brother once a month at a Veteran's home, and over Christmas, he went to visit a friend in San Antonio. He worked part-time for Salvation Army during Christmas but was let go because his physical limitations prevented him from fulfilling his duties. He indicated that he enjoyed fishing but he rarely felt up to it and spent most of his time at home. On mental status examination, it was noted that the Veteran had good grooming and hygiene. He was cooperative with no inappropriate behavior. His mood was dysphoric with restricted and flat affect. His communication was clear, logical, and coherent with no indications of irrelevant, illogical, or obscure speech patterns. Thought processes were clear, coherent, and goal directed. Thought content was unremarkable and void of any perceptual or delusional disturbances. Psychomotor retardation was noted. The diagnosis was major depressive disorder. A GAF score of 51 was assigned. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Based on a close review of the record, the Board finds that there are specific periods of time when different and distinct levels of impairment/disability were shown, and that "staged" ratings are warranted. The evidence reasonably shows that prior to October 18, 2010, the Veteran's MDD was best characterized as productive of occupational and social impairment with reduced reliability and productivity. It was noted that he was under significant stress related to his pending job termination. He reported sleep disturbances which caused him to sleep through his night shift at work, difficulty dealing with people at work, and disturbances of motivation and mood related to his job, separation from his wife, and the recent death of his mother. Although on April 2010 VA psychiatric evaluation he was assigned a GAF score of 48, indicating major impairment in several areas (such as work, family relations, judgment, thinking, or mood), the Board finds that the symptoms associated with such score (neglects family, unable to work, speech at times illogical, obscure, or irrelevant) were not noted at the time. He remained employed until he retired in August 2010, saw his children on weekends, and had normal speech on evaluation. Accordingly, the Board finds that a 50 percent, but no higher, rating is warranted for the MDD prior to October 18, 2010. From October 18, 2010, through March 4, 2013, the disability picture presented by the Veteran's MDD is best characterized as 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). The Veteran reported that he had moved in with his girlfriend, went out to dinner on occasion, and had a good relationship with his children. He maintained personal hygiene and tended to other activities of daily living. Although he reported interpersonal conflicts at work and stress related to his job, the Board notes that he had retired from in August 2010 (i.e., prior to the period). While he had some disturbances of motivation and mood, hypersomnia, poor concentration/indecisiveness, and difficulty remembering appointments, the examiner opined that such symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. Notably, an October 2012 VA treatment record notes that the Veteran appeared depressed but did not endorse many or most symptoms of depression. Furthermore, GAF scores assigned from November 2012 through January 2013 suggest mild symptoms. Accordingly, the Board finds that from October 18, 2010 through March 4, 2013 a rating in excess of 30 percent is not warranted. From March 5, 2013, the Veteran's MDD is reasonably shown to have been productive of occupational and social impairment with reduced reliability and productivity (but not deficiencies in most areas). On March 5, 2013, VA examination he reported difficulty establishing and maintaining effective work and social relationships; however, the Board notes that he also reported that he had gotten engaged, visited with his children every 2-3 weeks, spent time with his brother monthly, went out to eat on occasion, and was going to church regularly, which suggested a fairly normal social life. No deficiencies in activities of daily living were noted. Furthermore, he displayed good grooming and hygiene, and had normal speech, thought process and content. He was cooperative, with no inappropriate behavior, and no perceptual or delusional disturbances. Although he showed some disturbances of motivation and mood, restricted and flat affect, sleep impairment, anxiety, difficulty with concentration, and mild memory loss (such as forgetting appointments), the examiner opined that such symptoms were only productive of occupational and social impairment with reduced reliability and productivity. Consequently, the Board finds that from March 5, 2013, a rating in excess of 50 percent is not warranted. The Board has considered whether referral for extraschedular consideration is indicated. There is no objective evidence, or allegation, suggesting that the Veteran has symptoms or impairment not reflected by the schedular criteria described in the General Formula. All symptoms and impairment that have been reported and shown are encompassed by the schedular criteria for the ratings now assigned. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER A 50 percent rating, but no higher, is granted for MDD for the period prior to October 18, 2010, subject to the regulations governing payment of monetary awards. Ratings for MDD in excess of 30 percent from October 18, 2010, through March 4, 2013, and in excess of 50 percent from March 5, 2013, are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs