Citation Nr: 1800561 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-19 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 50 percent prior to October 29, 2016 for major depressive disorder and anxiety disorder with generalized anxiety disorder (GAD) and posttraumatic stress disorder (PTSD) features. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from July 1990 to July 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was notified of this decision in September 2012. A hearing was held in September 2017 by means of video conferencing equipment with the Veteran in Houston, Texas, before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing testimony is in the claims file. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In September 2017, the Veteran testified that she wished to withdraw her claim as it pertained to entitlement to a rating in excess of 70 percent from October 29, 2016 for major depressive disorder and anxiety disorder with GAD and PTSD features. 2. Prior to October 29, 2016, the frequency, severity and duration of the Veteran's symptoms of major depressive disorder and anxiety disorder with GAD and PTSD features did not result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for a rating in excess of 70 percent from October 29, 2016 for major depressive disorder and anxiety disorder with GAD and PTSD features have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating in excess of 50 percent prior to October 29, 2016 for major depressive disorder and anxiety disorder with GAD and PTSD features have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran appealed the continuation of the 50 percent rating assigned for her major depressive disorder and anxiety disorder with GAD and PTSD features. In July 2017, the RO granted a 70 percent rating from October 29, 2016. Because the grant was not a full grant of benefits for the entire pendency of the claim, the Veteran's claim remained on appeal. However, during her September 2017 hearing before the undersigned, the Veteran specifically indicated that she did not want to appeal the assigned 70 percent rating and wished to withdraw her appeal for an increased rating for major depressive disorder and anxiety disorder with GAD and PTSD features from October 29, 2016. Her testimony has been transcribed and a transcript has been associated with the claims file, which constitutes a valid written withdrawal of her claim. Hence, there remain no allegations of errors of fact or law for appellate consideration for the period from October 29, 2016. Accordingly, the Board does not have jurisdiction to review this portion of the appeal and it is dismissed. II. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. 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). III. Increased Rating Disability ratings are determined by applying the criteria set forth in 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 (2012); 38 C.F.R. Part IV (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran has been assigned a 50 percent rating for her service-connected major depressive disorder and anxiety disorder with GAD and PTSD features ("acquired psychiatric disorder") under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under Diagnostic Code 9434, which is governed by a General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in VA's general rating formula for 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 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). 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. The use of descriptive terminology 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. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Prior to August 4, 2014, the nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. Diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). The Board observes 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via an interim final rule, made immediately effective August 4, 2014, in part to substitute references to the DSM-IV for the DSM-5. The Secretary directed that the changes be applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit. 79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Importantly, the DSM-5 eliminated GAF scores. As the Veteran's claim was initially certified to the Board in August 2017, the DSM-5 applies. The Board notes that the Veteran filed to reopen a claim for service connection for PTSD in June 2012, which the RO treated as a claim for an increased rating for her service-connected acquired psychiatric disorder. She did not file a notice of disagreement with any prior rating decision; therefore, the Board will review evidence dated from June 2011. 38 C.F.R. § 3.400. In May 2012, the Veteran reported that she finished her degree and had been working at her children's elementary school; however, the job was only for 9 months and it ended. She was not employed. She also reported that she had run out of medication for four months but recently had her prescriptions filled. However, she said she was still quite depressed. The provider noted that she was tearful during her appointment. She said she had been crying frequently and was stressed about work and finances. She had poor appetite, poor concentration, and poor self-esteem. She denied suicidal ideation. She indicated that in the past, she believed she heard voices. She said her relationship with her husband had improved since he understood what she went through in the past. The provider noted depressed affect, auditory hallucinations, and fair insight and judgment. The Veteran had a VA examination in August 2012. Her symptoms included depressed mood, less interest in activities, frequent crying, changes in appetite, low energy, poor concentration, feelings of worthlessness, passive suicidal ideation, excessive worry, sleep problems, avoidance of intimacy, and avoidance of socializing. She stated that her relationship with her husband was "up and down" and that she was not happy with it. She indicated that their marital problems stemmed from her avoidance of sexual intimacy. Her temper was worse and she snapped at her children more often. She had one friend. She indicated that she could not find work. She did not have problems getting along with co-workers or supervisors at her last job because she largely worked by herself and was working with children and their families. She reported passive thoughts of suicide with the last time being a couple of months ago. She said she would not act on such thoughts because of her children. The examiner stated that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In December 2012, the Veteran appeared depressed and became tearful. She reported extreme irritability when dealing with her kids and said she felt guilty for it. She had low frustration tolerance and poor appetite. She had sleep problems and noted that last year she was seeing bugs crawl on the wall. She still checked to make sure bugs were not there before going to bed. She said her relationship with her husband had improved since he understood what she went through in the past. The provider observed fair eye contact, depressed mood, tearful and blunted affect, and passive suicidal ideation. She was prescribed a new medication, Remeron, and her Trazodone dosage was increased. January 2013 VA treatment records show the Veteran appeared much brighter with a broader range of affect. She was more engageable and smiled appropriately. She reported that she had not felt as good in a long time. She was eating and sleeping better. She denied suicidal ideation and indicated that her depression had dramatically lifted. She had fewer crying spells and denied anhedonia. She had low frustration tolerance when dealing with her children but was able to manage the instances. She was working full-time at school and performing better at her job. She indicated that her relationship with her husband had improved. Briefly, during her October 2016 examination, the Veteran reported that her brother died in a car accident in 2013. Her stepson died due to heart problems in 2014 and then in the summer of 2016, her husband took her two children away from her for two weeks. She and her husband divorced due to their inability to get along. During her September 2017 hearing before the Board, the Veteran testified that her marriage fell apart in October 2016. She also lost custody of one child. She stated that the last two to three years of her marriage were bad. She would see her kids and not see her kids. She stated that in 2013 she lost a job as a teacher for speaking her mind; however, she obtained a different teaching position. Her brother also died that year. She did not communicate with many coworkers. During this time, she did not seek individual counseling or therapy. Regarding her examination in 2012, she did not feel that it was a thorough examination. She stated that her symptoms at that time were the same as they were in 2016 but also that they worsened in 2013. The Board has reviewed all of the evidence but finds that a rating in excess of 50 percent is not warranted prior to October 29, 2016. Prior to this date, the Veteran's symptoms were not of the frequency, severity, and duration to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board acknowledges her reports of passive suicidal ideation; however, this symptom alone does not support the assignment of a 70 percent rating. Also, the onetime report of hallucinations in May 2012 is also insufficient to support a higher rating. Notably, the August 2012 examiner found that her symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Additionally, the Veteran reported improvement in her symptoms in January 2013. Since the Veteran stopped treatment from January 2013 until her VA examination in 2016, there is no information about the state of her mental health for this period. Thus, there is no evidence to support the assignment of a rating in excess of 50 percent for this period. The Board has considered the Veteran's testimony indicating that her symptoms have been of the same severity since she filed her claim. However, she also testified that her symptoms worsened in 2013. The Board acknowledges that the Veteran's marital relationship deteriorated further during this period, and ended in divorce. However, this incident alone, without further evidence, is not sufficient to support an increased rating. The criteria for a 50 percent rating consider difficulty in establishing and maintaining effective work and social relationships. Notably, while her relationship with her husband deteriorated, she was able to hold employment as a teacher for three years before being laid off. She subsequently, obtained another teaching position. Based on the available evidence, the Board cannot find that the Veteran's symptoms were of the frequency, severity, and duration to support the assignment of a rating in excess of 50 percent for any period prior to October 29, 2016. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The medical evidence does not show and the Veteran's testimony does not support a finding that she had symptoms of similar severity to those listed under the criteria for a 70 percent rating or that her symptoms were of the frequency, severity, and duration to cause deficiencies in most areas. Without such evidence, the appeal must be denied. ORDER The claim for a rating in excess of 70 percent from October 29, 2016 for major depressive disorder and anxiety disorder with GAD and PTSD is dismissed. Entitlement to a rating in excess of 50 percent prior to October 29, 2016 for major depressive disorder and anxiety disorder with GAD and PTSD is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs