Citation Nr: 1754230 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 10-38 953 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to a higher initial disability rating for the service-connected acquired psychiatric disorder, in excess of 50 percent for the period from July 5, 2009 to October 4, 2011, and from October 31, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from September 1968 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the RO in Waco, Texas. This case was previously before the Board in August 2016, where the Board granted a higher 50 percent disability rating for the service-connected acquired psychiatric disorder for the period from July 5, 2009 to October 4, 2011, a 100 percent rating for the period from October 4, 2011 to October 31, 2012, and a 50 percent rating for the period from October 31, 2012. Subsequently, the Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (Court) to the extent that the August 2016 Board decision denied ratings in excess of 50 percent for the period from July 5, 2009 to October 4, 2011 and from October 31, 2012. In an August 2017 Joint Motion for Partial Remand (JMR), the Court vacated the Board's August 2016 decision, to the extent that it denied initial ratings in excess of 50 percent for the period from July 5, 2009 to October 4, 2011 and for the period from October 31, 2012. Specifically, in the JMR the parties agreed that the Board failed to address relevant evidence, including symptoms and impairment of acquired psychiatric disorder, to include hallucinations. In compliance with the Court's order, such evidence is addressed in this Board decision. See Forcier v. Nicholson, 19 Vet. App. 414 (2006) (holding that the duty to ensure compliance with a Court Order extends to the terms of the agreement struck by the parties that form the basis of the JMR). The limited question of a higher initial disability rating for acquired psychiatric in excess of 50 percent from July 5, 2009 to October 4, 2011 and from October 31, 2012 are the only rating questions that were explicitly raised before the Court. FINDINGS OF FACT 1. For the initial rating period on appeal from July 5, 2009 to October 4, 2011 and from October 31, 2012, the severity, frequency, and duration of the symptoms of the service-connected acquired psychiatric disorder has more has more nearly approximated occupational and social impairment with deficiencies in most areas due to such symptoms as hallucinations, suicidal thoughts, irritability, disturbances of motivation and mood, and the intermittent inability to perform activities of daily living, include maintenance of minimum personal hygiene. 2. For the initial rating period on appeal from July 5, 2009 to October 4, 2011 and from October 31, 2012, the service-connected acquired psychiatric disorder was not characterized by total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from July 5, 2009 to October 4, 2011 and from October 31, 2012, the criteria for a disability rating of 70 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9421 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the psychiatric disorder rating question on appeal arises from disagreement with the initial rating following the grant of service connection, no additional notice is required regarding this downstream rating element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3159(b)(2) (no VCAA notice required because of filing of notice of disagreement). The Board's August 2016 decision found that any duty imposed on VA, including the duties to assist and to provide notification, had been met. This finding was not raised or challenged before the Court, and was not subject of the JMR and Court order. Further, as the Veteran has not advanced a worsening of disability symptoms since the last VA mental health examination, the Board need not remand the instant matter for a new VA examination. There remains no question as to the substantial completeness of the initial rating issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). VA's duties to assist and to provide notification have been met. Higher Initial Rating for Acquired Psychiatric Disorder Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9421. Pertinent in this case, the General Rating Formula provides that a 50 percent rating is assigned 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 and maintaining effective work and social relationships. 38 C.F.R § 4.130. A 70 percent rating will be assigned for 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appels for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In assessing the evidence of record, it is important to note that 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." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). A GAF score of 21 - 30 indicates "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends)." A GAF score of 31 - 40 indicates "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 man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." 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)." 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 61-70 indicates "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." The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard, 9 Vet. App at 267; Carpenter v. Brown 8 Vet. App. 240, 243 (1995). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder as they reflect on the degree of occupational and social impairment, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). The Veteran contends generally that the service-connected acquired psychiatric disorder has been manifested by more severe symptoms and impairment than contemplated by the 50 percent disability ratings assigned for the period from July 5, 2009 to October 4, 2011 and from October 31, 2012. See September 2017 Appellant's Brief. At the outset, the Board notes that the Veteran is in receipt of a 100 percent disability rating for the acquired psychiatric disorder for the period from October 4, 2011 to October 31, 2012 for an episode in which he was arrested after brandishing a knife at VA employees at an emergency room triage window. At that time, the Veteran reported thoughts of suicide with a specific plan. See October 2011 VA treatment records. After a review of the lay and medical evidence, the Board finds that, for the rating period on appeal from July 5, 2009 to October 4, 2011, as well as for the rating period on appeal from October 31, 2012, the severity of the psychiatric symptoms more nearly approximate the criteria of occupational and social impairment with deficiencies in most areas, as described for a 70 percent rating under Diagnostic Code 9421. The Board finds that during these initial rating periods (from July 5, 2009 to October 4, 2011 and from October 31, 2012) the service-connected acquired psychiatric disorder has resulted in occupational and social impairment with deficiencies in most areas, due to symptoms and impairment including hallucinations, suicidal thoughts, irritability, disturbances of motivation and mood, and the intermittent inability to perform activities of daily living, include maintenance of minimum personal hygiene. A November 2010 VA treatment record reflects the Veteran reported carrying a knife out of fearfulness. An April 2011 VA treatment record reflects the Veteran reported that disturbances of mood, anger, hostility, irritability had each worsened in severity. The September 2011 VA examination report reflects that VA examiner specifically assessed chronic irritability and hallucinations. The September 2011 VA examiner also assessed that the Veteran had become increasingly reclusive. December 2012 lay statements from the Veteran's wife, son, and daughter indicate difficulties doing chores, driving, and playing with grandchildren. The September 2014 VA examination report reflects the Veteran reported a recent arrest after a verbal altercation. In addition, the September 2014 VA examiner specifically assessed hallucinations, feelings of hopelessness, past thoughts of suicide, a disheveled appearance, and the intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene. For these reasons, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that, for the rating period from July 5, 2009 to October 4, 2011 and from October 31, 2012, a 70 percent disability rating is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Based on the above, the Board also finds that, for the rating period on appeal from July 5, 2009 to October 4, 2011 and from October 31, 2012, the level of occupational and social impairment due to acquired psychiatric disorder symptoms have not met or more nearly approximated the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal from July 5, 2009 to October 4, 2011 and from October 31, 2012, the record does not indicate total occupational and social impairment. The evidence does not show symptoms suggestive of total occupational and social impairment, such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, as required for a 100 percent disability rating under Diagnostic Code 9421. Specifically, a review of the relevant lay and medical evidence, including VA treatment records, the September 2011 and September 2014 VA examination reports, and lay statements, does not reveal that the Veteran has experienced total occupational and social impairment. The September 2011 and September 2014 VA examination report reflects that the Veteran reported being married, having relationships with his grandchildren, and having friends, demonstrating that the evidence of record does not demonstrate total social impairment. In addition, the September 2014 VA examiner opined that symptoms of the acquired psychiatric disorder manifested as occupational and social impairment with reduced reliability and productivity. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the acquired psychiatric disorder issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the issue of an extraschedular rating has not been made by the Veteran or raised by the record for any period on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Finally, in adjudicating the current appeal for a higher rating, the Board has not overlooked the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be part of a rating issue when the TDIU claim is either expressly raised by a veteran or reasonably suggested by the record. In this case, as distinguished from the facts in Rice, a September 2014 rating decision by the RO in Waco, Texas, granted a TDIU, effective May 22, 2014, and the Veteran did not disagree with the effective date assigned for a TDIU; therefore, the issue of a TDIU for the period prior to May 22, 2014 is not before the Board on appeal. ORDER For the rating period on appeal from July 5, 2009 to October 4, 2011, and from October 31, 2012, a rating of 70 percent, but no higher, for an acquired psychiatric disorder is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs