Citation Nr: 1752018 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 04-40 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected major depressive disorder with panic disorder (previously rated as adjustment disorder) (depressive disorder) prior to May 4, 2017. 2. Entitlement to a rating in excess of 70 percent for service-connected major depressive disorder with panic disorder (previously rated as adjustment disorder) (depressive disorder) beginning May 4, 2017. ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Air Force with active duty from January 1983 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted the Veteran's claim for entitlement to service connection for adjustment disorder and assigned an initial evaluation of 10 percent. The Veteran filed a timely Notice of Disagreement and, following a May 2004 VA examination, the Veteran's disability was recharacterized as major depressive disorder with panic disorder and his rating was increased to 30 percent effective February 3, 2004, as promulgated in a July 2004 rating decision of the St. Louis, Missouri RO. The Veteran timely perfected his appeal, stating that the symptoms of his major depressive disorder entitled him to a rating higher than his current evaluation. During this time, jurisdiction of the Veteran's claim was transferred to the Seattle, Washington RO. Subsequently, the Veteran was afforded an additional VA examination in May 2017, which resulted in a June 2017 Decision Review Officer Decision which assigned the Veteran a 50 percent evaluation effective February 1, 2013, and a 70 percent evaluation effective May 4, 2017. As the increased rating for the Veteran's depressive disorder is still less than the maximum benefit available, the appeal is still properly before the Board. A.B. v. Brown, 6 Vet. App. 35 (1993). This claim was most recently before the Board in March 2017, at which time it was remanded for further development, to include scheduling the Veteran for a new VA examination. Pursuant to the Board's remand directives, the Veteran was afforded a VA examination in May 2017, and accordingly, the Board finds that the March 2017 remand directives have been substantially complied with. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The claim has now returned to the Board for further appellate action. FINDINGS OF FACT 1. Prior to May 4, 2017, the Veteran's depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as weekly panic attacks, disturbances of motivation and mood, anxiety, and difficulty in establishing and maintaining effective work and social relationships; deficiencies in most areas or total occupational and social impairment were not shown. 2. Beginning May 4, 2017, the Veteran's depressive disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as difficulty in adapting to stressful circumstances, suspiciousness, anxiety and panic attacks, impaired impulse control such as unprovoked irritability, chronic sleep impairment, isolation, and difficulty in establishing and maintaining effective work and social relationships, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for major depressive disorder with panic disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017). 2. Beginning May 4, 2017, the criteria for a rating in excess of 70 percent for major depressive disorder with panic disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2017). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here, letters sent to the Veteran in April 2006 and May 2006, along with additional developmental letters, satisfied the VCAA notice requirement for his increased rating claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the June 2017 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board also notes that the Veteran is challenging the initial evaluation assigned following the grant of service connection for his depressive disorder In Dingess, the Court also held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, regardless of whether the notice that the Veteran was provided before service connection was granted was legally sufficient, VA's duty to notify as to this issue has been satisfied. VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C.. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records, post-service treatment records, and Social Security records have been obtained. He has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was most recently provided an examination in these matters in May 2017. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2016). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his depressive disorder warrants an increased rating, which is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under 38 C.F.R. § 4.130, Diagnostic Code 9434, a 50 percent evaluation 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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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." Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. A Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). a. Entitlement to an Initial Increased Rating in excess of 50 percent prior to May 4, 2017 The Veteran was first afforded with a VA examination in connection with his major depressive disorder in August 2003. At this examination, the Veteran was noted to have adjustment disorder with mixed anxiety and depressed mood, which was later clarified as major depressive disorder with panic disorder in another VA psychiatric examination. During this examination, the Veteran endorsed feeling depressed, difficulty with sleep, and periods of anxiety during which "he has trouble breathing" and episodes of nausea. However, the examiner noted that the Veteran was appropriately groomed, his thought process was logical and goal directed, and he denied any suicidal or homicidal ideations. The examiner provided the Veteran with a GAF score of 70, which indicates that that the Veteran's symptoms were generally mild and overall had a low impact on his social and occupational functioning. See, August 2003 VA examination. The Veteran was next afforded with a VA psychiatric examination in connection with his claim in May 2004. At this examination, the Veteran's diagnosis was clarified as major depressive disorder, recurrent, with panic disorder. With respect to the Veteran's depressive disorder symptoms, it was noted that the Veteran was feeling depressed due to his inability to find a job as a result of his other health issues, such as coronary artery disease. The Veteran also stated that he felt irritable and isolated and that he experiences panic attacks on almost a nightly basis when he goes to sleep, although noting that these resulted in a minimal impact on his functioning during the day. Additionally, the examiner noted other symptoms to include diminished interest or pleasure in activities most of the day, difficulty sleeping, fatigue, feelings of worthless ness, diminished ability to think or concentrate, and distress or impairments in social functioning. However, it was again noted that the Veteran was again appropriately groomed, his thought process was logical and goal directed, and he continued to deny any suicidal or homicidal ideations. The examiner opined that the Veteran's depressive disorder was of "moderate severity." See, May 2004 VA examination. Prior to the Veteran's next VA examination in May 2017, the Veteran received intermittent treatment for his depressive disorder. When the Veteran was treated, his depressed mood was consistently reported along with several positive depression screens. See, post-service treatment records dated June 2006, August 2007, January 2008. However, the Veteran was also consistently reported as being well-groomed, pleasant, maintaining a relationship with his children, and as not having suicidal or homicidal ideations. Additionally, there were several instances in which the Veteran was being treated where the depression screen was negative. See, post-service treatment records dated November 2009, June 2011, December 2011, March 2013, September 2013, July 2015, and December 2016. The Board also acknowledges that the Veteran was scheduled for a VA examination in 2012 but stated that he was too depressed to attend following his divorce. The Board also notes that during the Veteran's Social Security Administration's assessment, it was noted that overall, the Veteran's depressive disorder had a moderate degree of limitation on his restriction of activities of daily living, in maintaining social functioning, and in maintaining concentration, persistence, or pace. See, July 2006 Social Security Records. While findings by Social Security Administration are not binding upon the Board, the supportive medical evidence are certainly given probative weight when reaching a decision. As stated previously, in order to be granted a higher disability evaluation of 70 percent, occupational and social impairment with deficiencies in most areas must be shown. A 100 percent rating is warranted when there is total occupational and social impairment. The Board finds that the Veteran is not entitled to a rating in excess of 50 percent because he does not endorse the symptoms that are required for a 70 or 100 percent rating. More specifically, the Veteran was consistently noted to be well-groomed, his speech was found to be coherent, logical, and clear, and his thought process, attention, concentration and memory were all found to be grossly intact. The Veteran also denied suicidal or homicidal ideations during this time and his judgment was consistently noted to be okay. There was also no indication that the Veteran displayed any symptoms associated with a 100 percent rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. In coming to this conclusion, the Board has not overlooked the report in September 2012 when the Veteran was accused of domestic violence towards his wife at the time. However, the Board finds that prior to May 4, 2017, the Veteran's overall disability picture for his depressive disorder was manifested by occupational and social impairment with reduced reliability and productivity due to such recurrent symptoms as weekly panic attacks, disturbances of motivation and mood, anxiety, and difficulty in establishing and maintaining effective work and social relationships, which more closely approximate the criteria for his current rating of 50 percent disabling. Therefore, the Board finds that the preponderance of the evidence of record is against a rating in excess of 50 percent. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9434 b. Entitlement to an Increased Rating in excess of 70 percent beginning May 4, 2017 Most recently, the Veteran was provided with a VA psychiatric examination in May 2017. During this examination, the Veteran endorsed symptoms such as social isolation, depressed mood, panic attacks that occur weekly, and difficulty sleeping. The May 2017 examiner noted additional symptoms such as difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. However, the examiner also noted that the Veteran was appropriately dressed and groomed, there was no evidence of tangentialness, delusions, distortions, or hallucinations, the content of the thought was appropriate to the evaluation, and the Veteran did not appear to be a harm to himself or others. Overall, the examiner opined that the Veteran's occupation and social impairment was summarized as occupation and social impairment with reduced reliability and productivity. See, May 2017 VA examination. Following the May 2017 VA examination, the Veteran began seeking treatment for his depressive disorder again at the VA. In June 2017, the Veteran endorsed similar symptoms that were reported during his May 2017 VA examination, including depressed mood, difficulty sleeping, increased irritability, and social isolation. It was noted that the Veteran's diminished interested in activities, insomnia, fatigue, and inappropriate guilt seemed to fluctuate to circumstances and that the Veteran did not express any suicidal ideations. While the Veteran did state that he did not have any friendships at this time, it was noted that he maintained a relationship with his son and maintained an interest in some hobbies and interests. See, post-service treatment records dated May 2017, June 2017. Overall, the Board finds that the Veteran's current depressive disability symptoms also do not include 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name, as required for a higher disability rating of 100 percent. Therefore, the Board finds that the preponderance of the evidence of record is against a rating in excess of 50 percent. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9434. ORDER Entitlement to an initial rating in excess of 50 percent for major depressive disorder with panic disorder prior to May 4, 2017, is denied. Entitlement to a rating in excess of 70 percent for major depressive disorder with panic disorder beginning May 4, 2017, is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs