Citation Nr: 1636342 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 10-44 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disability, to include major depression with generalized anxiety disorder. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and her friend ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1980 to April 1981, from March 1991 to September 1991, from September 2001 to September 2002, and from November 2007 to March 2008. This appeal is before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified during a Board hearing in Philadelphia, Pennsylvania, before the undersigned Veterans Law Judge. A transcript is included in the claims file. In January 2016, the Board remanded the Veteran's appeal with instruction to remedy a failure to copy the Veteran's representative in all correspondence regarding her appeal since December 2012. Proper notice was supplied and the Veteran's representative submitted a VA Form 646 statement in support of the Veteran's appeal. The Board is therefore satisfied that the instructions in its remand of January 2016 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's acquired psychiatric disability is not productive of total occupational and social impairment; or of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for an acquired psychiatric disability, to include major depression with generalized anxiety disorder, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present case, required notice was provided by letter dated August 2008. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, and relevant records from the Social Security Administration have been obtained, as have relevant private medical records identified by the Veteran, with the exception of certain private treatment records dated December 2012 to February 2013, which the Veteran's private psychologist stated were destroyed in a flood via a June 2015 letter to VA. The Veteran was provided VA mental health examinations in June 2007, April 2009, March 2012, and November 2014. The Board finds that these examinations and their associated reports were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Merits The Veteran claims an increased rating for her mental health disability. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's acquired psychiatric disability is rated under Diagnostic Code 9434 of 38 C.F.R. § 4.130, which specifically addresses major depressive disorder; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, the Veteran's current 50 percent rating is warranted 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). One factor for consideration is the Global Assessment Functioning (GAF) score, which is based on a scale reflecting the "psychological, social, and occupational functioning in 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 the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.), p. 32.). Scores ranging from 61-70 indicate 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 good functionality with meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more 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). Scores ranging from 41 to 50 reflect 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 GAF score ranging from 31 to 40 indicates that there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed, avoids friends, neglects family, and is unable to work). A score ranging from 21 to 30 represents a person who demonstrates behavior that is considerably influenced by delusions or hallucinations or has serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or has the inability to function in most areas (e.g., stays in bed all day; no job, home, or friends). The Veteran underwent a VA examination in June 2007. She reported depression with diminished interest, poor energy, poor concentration, poor sleep, poor motivation, mood swings, and crying spells. Symptoms were exhibited most days. The Veteran reported no problems at work and was generally able to perform her functions as a secretary. She tended to isolate herself from other people. She was cooperative in the examination with a depressed mood and blunt affect. Speech, thought process, and thought content were normal, with no perceptual problems, or homicidal or suicidal ideation. She was oriented to person place or time. Insight, judgment, and impulse control were fair. She worked full time, spent her free time mostly at home watching television or doing crossword puzzles, and sometimes attended church. She was able to take care of her activities of daily living. She was diagnosed with major depression, and the examiner noted moderate symptoms and that the Veteran was somewhat isolative. The examiner assigned a GAF score of 50. In a July 2008 statement, the Veteran reported that she stays home more now and does not like to be around people or crowds. She reported being told she was sad and isolated herself from others. She reported getting upset easily and crying often. She stated that she was nervous, exhibited memory problems, had an inability to enjoy life activities, and had no personal life. She reported a sense of hopelessness or guilt, restlessness, anxiety, trouble concentrating and remembering, low energy, a lack of patience, and a loss of appetite. VA treatment records reflect that in July 2008 the Veteran reported mood swings and crying spells, which was attributed to stress caused by her mother's heart surgery. She was prescribed a low dose of antidepressants. A February 2009 VA examination report for migraine headaches noted that the Veteran exhibited persistent and moderately severe insomnia. The Veteran underwent another VA examination in April 2009. She reported that she had not missed any significant amount of work time due to her symptoms. The examiner noted a major discrepancy between the Veteran's presentation and her stated symptoms, but also stated that it is possible that the Veteran was capable of maintaining an affect for examination but experiences her stated symptoms in the absence of professional consultation. She presented as cheerful and upbeat, very personable and very sociable, indicating that she likes to speak to people and she enjoys talking. She reported extreme depression, extreme difficulty being around people, crying spells, and avoidance of leaving her home. She reported periods of extreme irritability with little provocation. She denied suicidal ideation but reported loss of enjoyment for activities. She reported varying between sleeping excessively throughout entire days and inability to sleep due to obsessing and worrying. On examination, mood was somewhat euphoric, affect was somewhat expansive, and speech was somewhat excessive. Memory and concentration were essentially intact. Abstract reasoning, judgment, and impulse control appeared intact. Insight appeared questionable. Though the Veteran reported severe psychiatric symptoms, she never sought or received psychological assistance. The examiner diagnosed recurrent major depressive disorder of mild severity by history only. A GAF score of 51 was assigned based on history presentation of symptoms. In an addendum to the opinion, the examiner opined that the Veteran's symptom history is potentially suspect due to the discrepancy between stated history and presentation. The examiner suggested obtaining a second opinion to rule out the examiner's impression that no depressive disorder was presently manifested. VA treatment records reflect that the Veteran sought mental health treatment in January 2010. She reported a dislike of crowds, fear of falling in public, and being less outgoing. She reported worsening anxiety, changes in her sleep, irritability, and crying episodes. She was diagnosed with anxiety and dysthymia and assigned a GAF score of 60. There was no change to her assessment when her medication was refilled in March 2010. At a December 2010 hearing at the RO, the Veteran reported problems with memory and concentration and withdrawal from people socially and at work. She reported a lack of sleep, low energy, and a lack of patience. She stated that she stays home and does not engage socially or in hobbies. She reported that she was not receiving any disability compensation from the Social Security Administration. The Veteran underwent another VA examination in March 2012. She reported spending her time watching television, reading, and spending time with friends once or twice per month. She also reported spending time with her adult son twice per month. She continued to work full time as a secretary at an information window, where she answered questions from approximately 60 to 70 people per day. She denied any significant lost time a work or disciplinary problems. The examiner noted that, as in previous examinations, the Veteran's presentation during the interview was completely incongruent from her stated symptoms. Specifically, she presented as personable, engaging with a pleasant and appropriate sense of humor and her affect was bright and she was well-related. In contrast, she reported a horrible mood and that she was frequently moody, disagreeable, and short. She reported lack of sleep and appetite. She reported worrying, difficulty concentrating, but denied poor self-esteem and stated that she saw no reason for mental health treatment. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The examiner diagnosed with a mood disorder and assigned a GAF score of 70. The report noted that this diagnosis was based on the Veteran's self-report of symptoms, as her presentation was typical of someone without mental health problems. The examiner found that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or were controlled by medication. Even if the Veteran's reported mental health symptoms are genuine, the examiner explained that they appear to affect her functioning only to a minimal degree, as she is able to maintain a job where she frequently interacts with other people. The examiner noted that it was possible that the Veteran's irritability occasionally contributes to self-imposed isolation and rejection by others, but per her own report these symptoms are not significant enough to warrant mental health treatment. In an October 2012 statement, the Veteran reported that her disability had increased greatly. She stated she suffered from lack of energy, sleep disturbance and insomnia, loss of interest in daily activities, and alienation and emotional distance from family and others. She reported a tendency to be emotional, crying frequently and feeling insecure, an inability to express or share feelings, and an inability to achieve intimacy in relationships. She stated she had few friends and isolated herself. She reported irritability, issues with anger, and memory problems. Private treatment records reflect that in June 2013 the Veteran reported depression, anxiety, and posttraumatic stress disorder (PTSD) to her primary care provider at a routine visit. Records do not reflect any treatment or examination for these reports. In September 2013, she reported less insomnia and less depression, but stated that she was still anxious regarding her mother's illness. She stopped taking her medications, began crying and stated that she was unable to work or concentrate. In December 2013, she again reported depression, insomnia, and panic at times, but she was crying less. VA treatment records reflect that in December 2013 the Veteran again sought mental health treatment. She was diagnosed with persistent depressive disorder and assigned a GAF score of 60. She attended one follow-up appointment in February 2014, but there is no indication that she continued with therapy thereafter. In March 2014, the Veteran underwent a mental health examination in connection with her application for disability benefits from the Social Security Administration. She reported difficulty falling asleep and a fluctuating appetite. She reported dysphoric moods, irritability, difficulty concentrating, self-isolation, and thoughts of death with no plan to harm herself. She reported episodes of increased agitation with throwing things and slamming cabinet doors. She reported hypervigilance, panic attacks, excessive worry, and flashbacks. Mood was dysthymic and affect was depressed. She was diagnosed with mixed anxiety and depressed mood, rule out bipolar-2 disorder. In April 2014, her disability assessment for benefits noted a severe affective disorder, with mild restriction of activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. There were no noted episodes of decompensation. It was noted that she ceased work in October 2012 due to depression, insomnia, and stress related to the recent death of her brother. Overall evidence endorsed a moderate condition, diagnosed as major depression. She was subsequently found to be disabled with her mental health disability as a secondary condition. Private treatment records reflect that a March 2014 visit to her primary care provider the Veteran reported depression and posttraumatic stress due to the death of her brother along with the aftereffects of her military service. Later in the month she reported hallucination. In April 2014, she reported depression which slightly improved later in the month. She continued to report depression in July 2014, which she reported reduced in August 2014, with a similar pattern in September and October 2014, but throughout the appeal period there is no indication that this general practitioner referred her for any psychiatric treatment. These appointments were mostly marked as routine visits which also addressed physical ailments such as nausea. The Veteran underwent another VA examination in November 2014. She reported spending most of her time caring for her aged mother, assisted by a home health aide, her adult son, and her adult granddaughter. When not caring for her mother, she reported watching television, trying to sleep, and attending church. She reported a close friend with whom she socializes once or twice monthly. She visits her son as often as possible, approximately every week or two. Occupationally, she reported that she ceased working in late 2012, but resumed the same job in October 2014. She reported that this stoppage in work was due to her depression. She noted that she had not engaged in any formal mental health therapy processes during the period since her last VA examination. Nevertheless, she reported continued symptoms of disturbed mood, irritability, physical and psychic energy depletion, sadness, disturbed sleep functions, and lack of interest in formerly pleasurable pursuits and activities. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner diagnosed the Veteran with a recurrent, moderate major depressive disorder, with features of anxious distress. The examiner found that her symptoms were productive of occupational and social impairment with reduced reliability and productivity. Private treatment records reflect that the Veteran again reported depression, insomnia, and crying at a routine visit to her primary care provider in December 2014. At her May 2015 hearing before the Board, the Veteran reported anxiety attacks, a lack of friends, staying home, irritability, anger issues, and lack of sleep. She stated that her disability has caused her to holler at family members. Her friend testified that she exhibited paranoia, suffered crying spells, did not eat, and had to be told to maintain her hygiene. The Board finds that an evaluation in excess of 50 percent is not warranted. The Veteran's current rating is warranted for occupational and social impairment with reduced reliability and productivity. Higher ratings are available for total occupational and social impairment, or occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The evidence does not establish such manifestations. The record establishes that the Veteran maintains positive relationships with multiple family members. Although she took a two-year leave of absence from work after the death of her brother, she returned to her job and is apparently able to fulfill her duties, as there is no evidence of lost time or reprimands. Furthermore, despite her reports that she has difficulty getting along with people, her work requires her to deal with many people on a daily basis, and there is no evidence that she has been unable to so interact. Indeed, the fact that the Veteran is able to serve as the primary caregiver for her aged mother indicates that her symptoms do not prevent her from performing valuable work. Additionally, there is no evidence in the record that the Veteran has been hospitalized or even given sustained treatment for her psychiatric disability. Her GAF scores range from 50 to 70, and all of her VA examiners have given convincing explanations as to why her symptoms do not cause her extensive deficiencies. To the extent that the Veteran has described symptoms that warrant a higher rating, the Board finds more probative the assessments of the VA examiners, both because they are based on medical expertise and because they are consistent with the record evidence showing that the Veteran continues to successfully maintain social and occupational relationships. The Board has considered whether an extraschedular evaluation is warranted for the Veteran's acquired psychiatric disability. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairments caused by the Veteran's acquired psychiatric disability, including disturbed mood, irritability, physical and psychic energy depletion, sadness, disturbed sleep functions, lack of interest in formerly pleasurable pursuits and activities, anxiety attacks, difficulty concentrating, memory troubles, anger issues, and social isolation are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. Her contentions have been limited to those discussed above, i.e., that her mental health disability is more severe than is reflected by the assigned rating. As was explained in the merits decision above in denying higher ratings, the criteria for higher schedular ratings were considered, but the rating assigned was upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). ORDER An evaluation in excess of 50 percent for an acquired psychiatric disability, to include major depression with generalized anxiety disorder, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs