Citation Nr: 1622219 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 11-22 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for adjustment disorder with depressed mood. 2. Entitlement to an evaluation in excess of 20 percent for bilateral hearing loss. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from August 1965 to June 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2011 and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. It was last before the Board in May 2015, when it was remanded for further development. The issues of entitlement to an increased disability rating for bilateral hearing loss and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's adjustment disorder with depressed mood results in, at worst, symptoms productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent rating for adjustment disorder with depressed mood are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.21, 4.130, Diagnostic Code 9440 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The notice requirements have been met with regard to the Veteran's claimed adjustment disorder. A November 2010 letter notified the Veteran of the information needed to substantiate and complete his claim for an increased disability rating, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. The Veteran was also provided notice as to how VA assigns disability ratings and effective dates. As the RO issued this notification letter prior to the adjudication of this issue, the notice was timely. The VCAA requires notice of 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 for increased rating claims. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The November 2010 letter complied with these notice requirements. Regarding the duty to assist, the Veteran's VA and private treatment records have been secured. The Veteran has not identified any additional records that could be used to support his claim for an increased rating for an adjustment disorder. The Veteran was provided VA examinations in connection with his claim. The Board finds the examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes, and that no further development of the evidentiary record is necessary. The Board finds that the most recent August 2015 examination substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). No additional pertinent evidence has been identified by the Veteran as relevant to the issue adjudicated herein. The Board is satisfied that evidentiary development is complete; VA's duties to notify and assist are met. The Veteran is not prejudiced by the process in this matter. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's 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. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. The RO has rated the Veteran's adjustment disorder with depressed mood under the under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, DC 9440. The General Rating Formula is as follows: A 50 percent rating is warranted 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. Id. 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 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 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. 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). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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, has some meaningful interpersonal relationships. A GAF score 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 score of 41-50 indicates 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). An examiner's classification of the level of psychiatric impairment, by words or a GAF score is a factor for consideration and not determinative of the percentage VA disability rating to be assigned. See also 38 C.F.R. § 4.126(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. On December 2010 VA examination, the Veteran reported a depressed mood, tearfulness with crying spells, guilt, negative expectations and self-doubt, helplessness, withdrawal, diminished concentration, sleep disturbance, loss of motivation, fatigue, and reduced appetite. He described a daily course of symptoms with exacerbations two or three times per week. He stated his symptoms were mild to moderate in severity. The Veteran reported he had been married for 40 years and was highly satisfied with his marriage and his relationships with his two adult children and two grandchildren. He also reported positive social relationships, but acknowledged that he tended to refrain from some interaction due to concerns regarding his hearing impairment. He stated he had been working in farming and ranching since his military discharge, and that he was self-employed raising corn and cattle. He said he and his wife played cards with another couple, he attended church weekly, and he was an active member of the Honor Guard, assisting with military funerals. He denied delusions, hallucinations, inappropriate behavior, and suicidal or homicidal thoughts or intents. While he was able to maintain minimal personal hygiene and other basic activities of daily living, his wife noted he often refrained from doing so during periods of exacerbation of his depressive symptoms. The examiner noted the Veteran had occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but generally satisfactory functioning routine behavior, self-care, and conversation normal. In a June 2011 letter, the Veteran's internal medicine physician described his depressive disorder as moderate-to-severe and difficult to control. He stated the Veteran was withdrawn from professional and family life due to his hearing, which in turn caused the depression. On October 2011 VA examination, the examiner indicated the Veteran's adjustment disorder caused occupational and social impairment with reduced reliability and productivity. He noted the Veteran's symptom reporting was consistent with no increase or decrease in his chronic adjustment disorder. On October 2014 VA examination, the Veteran was diagnosed with major depressive disorder that resulted in occupational and social impairment with reduced reliability and productivity. Since his last VA examination in October 2011, the Veteran did not report any changes in his social, marital, or family history. He stated he had recently retired although he continued to work on the farm. He reported he enjoyed hunting and fishing, babysitting his grandchildren, traveling, and watching his granddaughter play softball. His symptoms at the time of the examination were depressed mood and disturbances of motivation and mood. A June 2014 VA mental health clinic note indicated the Veteran reported "feeling down lately" due to his brother's death a week prior, a difficult planting season, and increased depression since the prior fall after selling his cows and having knee surgery. On August 2015 VA examination, the examiner noted the Veteran's adjustment disorder with anxiety and depression resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A GAF score of 59 was assigned. The Veteran reported that his appetite, energy level, sleep, and motivation were variable. He stated that to a "little degree" he felt hopeless or helpless on "some days." He was not suicidal or homicidal. Upon review of the record, the Board finds that the disability picture presented by the Veteran's adjustment disorder with depression reflects no more than occupational and social impairment with reduced reliability and productivity for the entire appellate period. None of the examiners have indicated the Veteran's symptoms result in occupational and social impairment with deficiencies in most areas. The Board has carefully reviewed the lay and medical evidence relevant to the severity of the service-connected psychiatric disability. Considering all this evidence and the General Rating Formula, the Board finds that the symptoms and severity thereof most closely match that described as reflecting a 50 percent rating. In making this determination, the Board has considered the impairments in social functioning described by the Veteran and the examiners evaluating the disability. After this analysis, the Board finds that the disability does not more nearly meet the criteria for a 70 percent rating. Accordingly, a disability rating in excess of 50 percent for an adjustment disorder with depressed mood is not warranted. The Board has considered whether referral for extraschedular consideration is warranted for the Veteran's adjustment disorder with depressed mood under 38 C.F.R. § 3.321(b). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In Thun, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Comparing the Veteran's adjustment disorder symptomatology to the applicable criteria, the Board finds that the degree of disability that was shown is encompassed by the rating schedule. As articulated in the above discussion, the Veteran's adjustment disorder with depressed mood results in, at worst, symptoms productive of occupational and social impairment with reduced reliability and productivity. Such symptomatology (and effects on daily living) is contemplated by the rating criteria and does not present an exceptional disability picture. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration of the adjustment disorder is not warranted. 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. 111. ORDER A disability rating in excess of 50 percent for an adjustment disorder with depressed mood is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. The Veteran underwent a new VA audio examination in August 2015 pursuant to a Board remand. After review of the examination report, the Board finds that an additional VA audio examination should be obtained. In the August 2015 examination, the examiner stated the Veteran's prior hearing evaluations were consistent and that no pattern of hearing impairment in one ear could resolve and develop in the other ear. However, in its May 2015 remand, the Board noted that the Veteran's December 2010 VA examination showed no exceptional pattern of hearing impairment, an October 2011 VA examination indicated an exceptional pattern of hearing impairment in the left ear only, and an October 2014 VA examination revealed an exceptional pattern of hearing impairment in the right ear only. The August 2015 examiner was asked to provide an opinion regarding the discrepancies in the prior examination results and failed to do so. Therefore, the Board finds that the August 2015 examination is inadequate because it is incomplete. See 38 C.F.R. § 3.310; see also Stegall v. West, 11 Vet. App. 268 (1998) (regarding legal necessity of compliance with previous Board directives). For this reason, the Board directs an additional examination be provided. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with the claim for a higher rating for his bilateral hearing loss. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Consideration of the claim for TDIU must be deferred pending the resolution (development and readjudication) of the bilateral hearing loss claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA or private treatment the Veteran has received for the bilateral hearing loss disability on appeal; this specifically includes treatment records from the VA Medical Center in Omaha, Nebraska from August 2015 to the present. 2. After completing directive (1), the AOJ should arrange for a VA audiology evaluation of the Veteran to ascertain the current nature and severity of his service-connected bilateral hearing loss. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran's bilateral hearing loss disability, noting their frequency and severity. The examiner is also asked to address the findings from the December 2010, October 2011, October 2014 VA, and August 2015 examination reports and comment on the consistency of the findings between examinations. Any discussion regarding the varying level of disability reflected in these reports would assist the Board is evaluating the severity of the disability for this period of time under appeal. The examiner should also specifically address the impact such disability has on the Veteran's employability. Examination results should be clearly reported. 3. The AOJ should then review the obtained VA examination report to ensure that the opinions contained therein are responsive to the questions posed. 4. The AOJ should then review the record and readjudicate the claims on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs