Citation Nr: 1756627 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-12 107A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for schizoaffective disorder. 2. Entitlement to an increased rating in excess of 10 percent for osteoarthritis of the left knee. 3. Entitlement to an initial rating in excess of 10 percent for left knee instability. (The claim for an increased rating for a low back disability is the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from September 1977 to January 1979. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This appeal was remanded for development by the Board in January 2016 and is now ready for appellate review of the claims for increased ratings for schizoaffective disorder and left knee instability. In his June 2013 substantive appeal, the Veteran requested a hearing at the RO. In a hand-written statement date-stamped as received in August 2014, the Veteran requested a videoconference hearing at his RO. However, in correspondence dated in January 2015, the Veteran withdrew his hearing request due to severe pain he had been experiencing in his lower back which made any type of travelling difficult for him. Under 38 C.F.R. 20.704(e), a request for a hearing may be withdrawn by an appellant at any time before the hearing. Thus, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. 20.704(e) (2017). The claim for a rating in excess of 10 percent for osteoarthritis of the left knee is addressed in the REMAND portion of the decision below requires additional processing and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Schizoaffective disorder does not result in total occupational and social impairment. 2. No more than slight recurrent subluxation or lateral instability in the left knee is demonstrated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for schizoaffective disorder are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, Part 4, including §§ 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440 (2017). 2. The criteria for a rating in excess of 10 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, Part 4, including §§ 4.7, 4.71a, DC 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Duty to Assist/Standard of Review Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or assist as pertinent to the claims adjudicated herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In this regard, the development requested by the January 2016 Board remand has been substantially accomplished with respect to the issued adjudicated below. When there is an approximate balance in the 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. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A. Schizoaffective Disorder The General Rating Formula for Mental Disorders provide for a 10 percent for psychiatric disorders if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A rating of 30 percent is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 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. A 70 percent disability rating is 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 that is 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. A 100 percent disability rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the Veteran's own occupation or name. 38 C.F.R. § 4.130. The symptoms recited 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." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased 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. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." (An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. However, the provisions of this interim final rule do not apply to the instant case, as these provisions only apply to applications for benefits that are received by VA or that are pending before the RO on or after August 4, 2014.) There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (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 evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The service connected psychiatric disability at issue is rated under DC 9440 (chronic adjustment disorder). Such disability is rated under the General Rating Formula for Mental Disorders as set forth above. Summarizing the pertinent facts with the above criteria in mind, following an October 2003 VA examination that noted the Veteran had depressive symptoms that were partially related to knee and ankle injuries, a November 2003 rating decision granted service connection for a psychiatric disorder, characterized at that time as adjustment disorder with depressed mood, as secondary to the service connected left ankle disability. A 10 percent rating was assigned. The 10 percent rating for the service connected psychiatric disorder was continued until a November 2006 rating decision increased the rating to 30 percent, implementing a November 2006 Board decision. The 30 percent rating for the service-connected psychiatric disorder was continued until the June 2009 rating decision on appeal increased the rating for this disability-recharacterizing such as schizoaffective disorder associated with service connected left ankle disability-to 70 percent, effective from the date of receipt of the claim for increase, October 25, 2007. Such action was preceded by a May 2009 VA psychiatric examination which diagnosed the Veteran with schizoaffective disorder, bipolar type, and provided a GAF score of 40. Symptoms were said at this examination to include a dysphoric mood, disorganized thought processes, and auditory hallucinations. The examiner found that it was not at least as likely as not that the Veteran's psychiatric symptoms were secondary to his orthopedic problems. Thereafter, the service connected psychiatric disorder was increased to 70 percent effective from the effective date of the 50 percent rating of October 25, 2007 by a June 2013 rating decision. This rating decision indicated the 70 percent rating was based on findings that the service-connected psychiatric disability resulted in impaired impulse control, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, chronic sleep impairment, and suspiciousness. At the most recent VA psychiatric examination conducted in May 2016, the examiner selected "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood" as best summarizing the level of occupational and social impairment resulting from psychiatric disability. The reports from this examination indicated the Veteran was married in 2013 but that his relationship is tension-filled, with frequent arguments. He noted that his wife had her own apartment and that he is often alone in his apartment. The Veteran reported that since retiring in 2015, he spends most of his time at home. It was noted that the Veteran was compliant with his VA psychiatric treatment. Psychiatric symptoms were said to involve a depressed mood, anxiety, suspiciousness, chronic sleep impairment, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and persistent delusions or hallucinations. The behavioral observations at the May 2016 VA examination found the Veteran to be alert and oriented to three spheres and to have thought content that was linear and goal directed. His mood was "slightly depressed," affect was congruent with content, and the Veteran endorsed passive suicidal ideation. The Veteran denied homicidal ideation and auditory and visual hallucinations. The examiner noted that the Veteran was unable to be gainfully employed due to his schizoaffective disorder. Applying the applicable legal framework to the facts summarized above, while the Board acknowledges that the service connected psychiatric disability has been determined to prelude employment, and a total disability rating for compensation based on individual unemployability has been granted, the GAF score of 40 recorded at the May 2009 VA examination, while representative of "major" impairment, is not reflective of the "total" occupational and social impairment required for a 100 percent rating. The reports at the most recent psychiatric examination of the Veteran being alert and oriented to three spheres; to have a thought content that was linear and goal directed; and affect that was congruent with content are also not indicative of the "total" impairment required for a 100 percent rating. Moreover, at the most recent VA examination, the level of impairment due to psychiatric disability selected was not "total" impairment warranting a 100 percent rating but the level of impairment corresponding to a 70 percent rating. The Veteran remained employed until March 2015, when he retired after 30 years (he has been awarded a total rating for compensation based on individual unemployability (TDIU) effective in March 2015). He has remained in a relationship (albeit troubled) with his wife of 13 years. Thus, the evidence does not show total social and occupational impairment. A rating in excess of 70 percent for the Veteran's schizoaffective disorder is not warranted. 38 C.F.R. § 4.130. In making the rating determination above, the Board emphasizes that it has considered the applicable rating criteria not as an exhaustive list of symptoms, but rather, as examples of the type and degree of the symptoms or effects that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a rating in excess of 70 percent for the service-connected psychiatric disorder. See supra, Mauerhan. In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for schizoaffective disorder; therefore, entitlement to a rating in excess of 70 percent for this disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. B. Left Knee Instability Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating under DC 5257. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. 4.71a, DC 5257. The June 2009 rating decision that gave rise to this appeal granted a separate rating [service connection for left knee osteoarthritis, rated on the basis of limitation of motion, was previously granted] of 10 percent for instability in the left knee under DC 5257. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Such followed a May 2009 VA examination of the left knee that showed instability, with valgus laxity, a +/- posterior drawer sign, and a negative McMurray's test. The most recent examination of the left knee conducted in March 2017 in pertinent part showed the Veteran reporting that his left knee gives out with prolonged weight bearing and walking. Joint stability testing of the left knee showed no recurrent subluxation, slight lateral instability, and normal anterior, posterior, medial, and lateral instability testing. The above examination findings are not indicative of any more than mild disability due to recurrent subluxation or lateral instability in the left knee, and the VA outpatient treatment reports also are not reflective of more than mild disability due to recurrent subluxation or lateral instability in the left knee. While the Veteran's statements are competent, he has not reported a more severe level of instability or subluxation. Examiners have found only slight instability and normal muscle strength. Portions of the knee disability are remaned below for consideration of 38 C.F.R. §§ 4.40, 4.45 (2017). These provisions do not apply to DC 5257. Johnson v. Brown, 8 Vet. App. 423 (1995) In sum, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for left knee instability; therefore, entitlement to a rating in excess of 10 percent for this disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 70 percent for schizoaffective disorder is denied. A rating in excess of 10 percent for left knee instability is denied. REMAND The March 2017 VA examination, in discussing the degree to which service connected left knee disability resulted in flare-ups, noted that the Veteran described flare-ups of left knee pain and that pain, fatigue, and lack of endurance during such flare-ups significantly limited functional ability. However, as the examination was not conducted during a flare-ups of left knee pain, the examiner stated that it would be "speculative" to asses any additional loss of motion which might result during flare-ups. As such, this examination is not compliant with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court held that examiners have a duty to estimate limitation during flare-ups and if they cannot so estimate, must provide reasons why this is so. The Court went on to hold that there was no requirement that an examiner witness the limitation during a flare-up; hence the inability to observe the limitation would be an insufficient reason for failing to estimate limitation.. Accordingly, the case is REMANDED for the following action: 1. Arrange for a VA examination to assess the degree of any additional loss of left knee motion during flare-ups. If flare-ups are not shown during the examination, the examiner should obtain adequate information regarding the loss of left knee motion from flare-ups. The examiner should specifically ask the Veteran to report the ranges of left knee motion during flare-ups; record those reports in degrees; and opine whether the reports are consistent with the disability found on the examination and in prior examinations.. 2. If any benefit sought on appeal is not fully granted, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs