Citation Nr: 1756593 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-26 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a higher disability rating for service connected major depressive disorder (MDD), rated as 70 percent disabling prior to September 18, 2013, and 100 percent disabling thereafter. 2. Entitlement to service connection for a psychiatric disability other than MDD to include posttraumatic stress disorder (PTSD), paranoid schizophrenia, bipolar disorder, adjustment disorder, and an alcohol abuse disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to June 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2007 and January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California which denied a rating increase in excess of 30 percent for MDD, and denied service connection for PTSD. The Veteran filed his notice of disagreement in March 2009, was issued a statement of the case in May 2010, and in June 2010 perfected his appeal to the Board. The Board notes that although the Veteran did not appeal the April 2007 rating decision that continued the 30 percent rating for MDD, new evidence, including VA treatment records addressing the severity of his service connected MDD, was submitted prior to the expiration of the appeal period and was not addressed. See 38 C.F.R. § 3.159(b) (2016). As a result, the April 2007 rating decision was precluded from becoming final. Cf. Bond v. Shinseki, 659 F.3d 1362 (2011). In August 2016, the Veteran testified at a hearing before the undersigned. A hearing transcript is of record. In March 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development, specifically for additional treatment records and a new VA examination. A May 2017 rating decision denied service connection for a psychiatric disability other than MDD, and granted a rating increase for the Veteran's MDD with an evaluation of 70 percent disabling prior to September 18, 2013, and 100 percent thereafter, and issued a supplemental statement of the case. As the evaluation for the period prior to September 18, 2013 constitutes a partial grant of the benefits sought on appeal, the issue of an increase rating for MDD remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Finding substantial compliance with the remand directives, the appeal is now properly before the Board. See Stegall v.West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to September 18, 2013, the Veteran's service-connected MDD was manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, due to various symptoms; the symptoms do not result in both total occupational and social impairment. 2. The Veteran's psychiatric disorders other than MDD did not have onset during service and are not caused by the Veteran's active service or a service connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for MDD for the period prior to September 18, 2013 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, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for entitlement to service connection for a psychiatric disorder other than MDD have not all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating The Veteran has contended that his service connected depression has worsened, he is unable to hold a job, and has lost friends and family because he is emotionally unstable. He has stated that war related stress, pressure and responsibility have caused a deep depression that ultimately led to his discharge. He also has stated that he cannot handle life or take care of himself, and has been homeless. As previously mentioned, the Veteran is currently service connected for MDD, evaluated as 70 percent disabling prior to September 18, 2013, and 100 percent disabling thereafter. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit), has explained that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Language in Vasquez-Claudio indicates that the phrase symptoms other than those listed, which are "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. Under the General Rating Formula for Mental Disorders, an evaluation of 70 percent for MDD will be assigned where there is evidence of 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. 38 C.F.R. § 4.130. A 100 percent rating is assigned 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 to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Id. For purposes of considering the evidence in connection with the MDD issue, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM-IV") (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to "DSM-IV," AMERICAN PSYCHIATRIC ASSOCIATION : DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated "DSM-5," and examinations conducted pursuant to the DSM-5 do not include GAF scores. Here, of the evidence was in the context of the DSM-IV and therefore include a relevant GAF score. The Board will consider these GAF scores in adjudicating the claim, as doing so is most advantageous to the Veteran in this case. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF 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. When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102; Mauerhan v. Principi, 16 Vet. App. 436 (2002) (factors listed in the rating formula are examples of conditions that warrant a particular rating and are used to help differentiate between the different evaluation levels.). The Veteran's appeal was certified to the Board in August 2016, after the DSM-V became controlling for the criteria to evaluate mental disorders. See 38 C.F.R. § 4.125 (a) (2016). However, VA scheduled the Veteran for a VA examination in May 2017 and notified him of the examination at his then current address of record. He did not report for the examination and has not provided good cause for failing to do so. Hence, VA has met its duty to assist the Veteran in this regard. It is noted that the 2007 rating decision was not issued pursuant to a claim for an increase but rather was the result of a review examination; the Board will therefore consider the rating increase issue based on the evidence of record. See 38 C.F.R. § 3.655 (2017). Also of note is that a good deal of the evidence refers to the Veteran's employment difficulties. The Veteran has one service-connected disability, MDD, and a 100 percent rating has been in effective ever since service connection was established for MDD, either via a total disability rating based on individual unemployability (TDIU) or a scheduler rating based on the criteria for evaluating mental disorders. Service treatment records provide evidence that the Veteran received treatment for depression which was exacerbated by financial stresses. The Veteran expressed interest in financial and work independence, as well as a desire for a "good relationship". A September 2002 note showed that the Veteran denied suicidal or homicidal ideation, but also that the Veteran reported decrease in sleep, interests, and libido due to life stressors. In April 2005, the Veteran was provided a VA examination. He reported having to struggle his entire life and stated that he enlisted into the military to get his life together, but instead his depression and drinking worsened. The Veteran stated that he was oversleeping, drinking, and depressed, in part due to finances. The examiner opined that the Veteran's depressive disorder was exacerbated in the military and believes it is due to financial hardships and unemployment. The Veteran denied hallucinations, was not delusional, and while he talked about passive suicidal thoughts, he denied any suicidal intentions or plans. His insight and judgment were deemed fair, and he was oriented to person, place, time and situation. The examiner assigned a GAF score of 55. A March 2006 psychiatric evaluation provided by SSA records noted that the Veteran is not capable of managing his own funds, can perform simple and repetitive tasks, but also noted detailed and complex tasks are complicated due to low frustration tolerance, impulsivity and irritability. A GAF score of 55 was assigned. In April 2007, the Veteran was afforded another VA examination. The Veteran reported having been fired from many jobs since his discharge from the Air Force, and stated his anger and depression caused him to be late to work. The Veteran was living at a friend's house, but was capable of taking care of his own personal needs and managing his finances. The examiner noted no loosening of association or flight of ideation, and there were no hallucinations. The Veteran did discuss paranoid ideation regarding the government, but denied suicidal ideation. The examiner assigned a GAF score of 50, based in part due to the Veteran's financial hardship. The Veteran's June 2007 VA intake report described his style of expression as enthusiastic and playful, and noted he may prefer a lively environment. The report also noted that when the Veteran chooses to reveal personal matters, he tends to be forthright and genuine. The report showed that the Veteran prefers to lead an independent life and may often assert control or be persuasive. VA treatment records at White City, Oregon show a diagnosis for MDD in May 2008 which had evolved and presented as a thought disorder with a GAF score of 45. The Veteran was afforded yet another VA examination in September 2013. The examiner noted the Veteran's diagnosis for severe MDD with recurrent psychosis which had worsened since his April 2007 VA examination. The Veteran's symptoms included paranoid delusions concerning the government, ongoing suicidal ideations without current intent, and a feeling "the devil is in my head and causing me to think about suicide and I have to fight against it." The Veteran displayed poor judgment and impulse control, little appetite, and difficulty with energy and motivation. The Veteran stated he felt he was not normal, but was oriented to person, place, date, time and situation. The Board finds that for the period prior to September 18, 2013, the Veteran's symptoms more closely approximate the level of occupational and social impairment contemplated by a 70 percent rating. The Veteran's symptoms included: low frustration tolerance, impulsivity and irritability; paranoid ideation; and issues with anger management. The Veteran reported his anger and depression impacted his ability to find and maintain employment, and for this period he was assigned GAF scores between 45-55, denoting moderate to serious impairment in social, occupational, or school functioning. However, the evidence of record for the period also notes that the Veteran was capable of maintaining some social relationships as he lived with his girlfriend of three years until 2007 who helped him make ends meet, had a good relationship with his mother, and also spent some time living with a friend. The evidence also shows that prior to September 18, 2013, the Veteran was capable of taking care of his own personal needs. The Board observes that a rating in excess of 70 percent is not warranted prior to September 18, 2013 because the evidence of record shows that the Veteran's psychiatric disability did not result in total social and occupational impairment during this period. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of impulsivity, irritability, paranoid ideation and anger are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). For the reasons stated above, the Board concludes that the preponderance of evidence is against a finding that the Veteran's MDD has resulted in total occupational impairment prior to September 18, 2013 and does not warrant extraschedular consideration. Hence, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. II. Service Connection The Veteran's appeal was certified to the Board in August 2016, after the DSM-V became controlling for the criteria to evaluate mental disorders. See 38 C.F.R. § 4.125 (a) (2016). Pursuant to a Board remand, VA scheduled the Veteran for a May 2017 VA examination to determine if whether any of his diagnosed psychiatric disabilities were related to service. VA notified him of examination at his then current address of record. He did not report for the examination and has not provided good cause for failing to do so. Therefore, the Board will adjudicate the appeal based on the evidence of record. See 38 C.F.R. § 3.655(b). The Veteran is claiming service connection for PTSD, stating that he was diagnosed with PTSD and schizophrenia while at the White City, VA. During his November 2016 hearing, the Veteran testified that he suffered from flashbacks and nightmares as a result of PTSD he suffered due to stress from his time in the service. He was unable to identify one specific stressor for PTSD, but said the stress was a result of the pressure he was under in the military as the youngest airman, and fearing for his life of being harmed once war started because he had to be ready to go to the front line. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f). Under 38 C.F.R. § 3.304 (f)(3), if a stressor claimed by a veteran is related to the veteran's fear of hostile, military, or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. With respect to a current diagnosis of PTSD, the threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In particular, aside from credible evidence of an in-service stressor, current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a) (i.e., DSM-IV) is required, along with competent evidence of a nexus between current PTSD and a verified in-service stressor. 38 C.F.R. § 3.304 (f) (2017); Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the evidence does not support that there was a service-related stressor or that the Veteran has been diagnosed with PTSD in accordance with 38 C.F.R. § 4.125 (a) under DSM-IV. While the Veteran reported being diagnosed with PTSD and schizophrenia at the White City VA, a review of the treatment records finds no confirmed AXIS I diagnosis of PTSD per diagnostic criteria as outlined by the DSM-IV. An initial psychiatric assessment from May 2008 includes a diagnosis of schizophrenia, paranoid type with psychosis, rule out schizoaffective. That assessment includes a statement that the Veteran had a long standing thought disorder and had been diagnosed with major depression in the past that may be the beginning of his problem. The clinician stated that the Veteran's mental illness had evolved and, at the time of the assessment, was presenting mainly as a thought disorder. The clinician stated that there may be some mood components to it but was going to treat the psychotic thinking and deal with what emerges. The psychiatrist's language that his major depression in the past may be the beginning of the Veteran's problem is a speculative statement relating the schizophrenia to service. As it is speculative, it is insufficient to form the basis for a grant of service connection for schizophrenia. Hence, service connection cannot be granted for schizophrenia. Similarly, the record shows that the Veteran has been diagnosed with other psychiatric disorders during the course of his claim and appeal. However, the record does not contain sufficient evidence of a nexus between his active service and such disorders or of causation or aggravation of any of these disorders by his service connected MDD. Hence, the appeal as to those claims must be denied. The records note the Veteran speaking of stress related to dealing with PTSD and mentioning being told he has PTSD, but there is no evidence of record which clearly provides a medical diagnosis for PTSD. The Veteran's report of medical examination and medical history at induction are silent for any psychiatric disabilities or mental health issues, and the only mental health issues noted in the service treatment records are for depression. A January 2007 VA treatment record note states that an evaluation of a positive PTSD screen shows that the Veteran has not experienced an event that involved actual or threatened death or serious injury to the Veteran or someone else that caused them to experience intense fear, helplessness or horror. Therefore, the physician concluded that the PTSD screen yielded a false positive. February 2015 VA mental health treatment records include a note that the Veteran may have PTSD and made adjustments to the Veteran's medications. While the February 2015 mental health note stated that the Veteran may have PTSD, the Board finds the note not probative as it amounts to no more than speculation. Additionally, there is no evidence that the treating examiner analyzed the Veteran's symptoms in accordance with DSM-IV, thus the speculative diagnosis is insufficient for VA purposes. The Veteran has also failed to provide evidence of an in-service stressor that can be verified. The VA has attempted to corroborate the Veteran's stressful events, and to that end mailed a PTSD questionnaire to the Veteran in June 2008 which the Veteran returned with no specific information. In December 2008 the Veteran was asked to provide additional details, but failed to do so. Considering the evidence of record under the laws and regulations as set forth above, the Board has determined that service connection is not warranted for a PTSD. The Board notes that in order for the Veteran's claim of service connection for PTSD to be granted, the record would have to contain a diagnosis of PTSD. As discussed above, the Veteran's medical treatment records are predominantly negative for signs, notations, or a diagnosis of PTSD within the criteria of DSM-IV. The Board has not ignored the Veteran's contentions that he has PTSD and that it is related to his active service. However, while the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise as would be necessary for a diagnosis of a psychiatric disability. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render such a diagnosis or render a medical opinion on this matter. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue in this case is outside the realm of common knowledge of a lay person because it involves a complex medical issue that goes beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Again, although there are diagnoses of several psychiatric disorders of record, including bipolar disorder, affective disorder, anxiety disorder, adjustment disorder, alcohol abuse disorder, and schizophrenia, the evidence does not show, to an equipoise standard of evidence or greater, that any of these, other than MDD, had onset during active service or were caused or aggravated by his service connected MDD. The evidence is also against a grant of service connection for PTSD, as explained above. As such, the appeal must be denied with regard to this issue. There is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to a disability rating in excess of 70 percent for service connected major MDD prior to September 18, 2013, is denied. Entitlement to service connection for a psychiatric disability other than MDD to include posttraumatic stress disorder (PTSD), paranoid schizophrenia, bipolar disorder, adjustment disorder, and alcohol abuse disorder, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs