Citation Nr: 1802558 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-06 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 30 percent for depression and anxiety from April 14, 2011. ORDER A 70 percent disability rating for service-connected depression and anxiety, but no higher, is granted for the rating period on appeal from April 14, 2011. FINDING OF FACT From April 14, 2011, the Veteran's psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 70 percent disability rating for depression and anxiety have been met for the rating period on appeal from April 14, 2011. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from November 1965 to September 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction over the Veteran's claims file was subsequently transferred to the Roanoke RO. The Veteran provided testimony at a May 2016 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. In a July 2016 decision, the Board granted an initial 70 percent disability rating for depression prior to April 14, 2011, and a 30 percent disability rating thereafter. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Remand (Joint Motion). In the May 2017 Order, the Court remanded the portion of the Board's July 2016 decision which had granted a 30 percent disability rating but no higher from April 14, 2011, for compliance with instructions provided in the Joint Motion. In its July 2016 decision, the Board also determined that the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) had been raised during the adjudicatory process of the underlying disability (depression), and remanded the TDIU claim for adjudication by the RO. However, in a September 2017 letter, prior to certification of the issue to the Board, the Veteran withdrew the claim of entitlement to a TDIU. Therefore, the Board does not have jurisdiction over that issue and will not address it herein. As noted above, the Veteran is in receipt of a 30 percent disability rating for his service-connected depression from April 14, 2011. He asserts that his psychiatric symptoms, which include anxiety, depressed mood, sleep disturbances, social isolation, irritability, anger, crying spells, and passive suicidal ideation, warrant a higher disability rating. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evaluations for PTSD are assigned pursuant to 38 C.F.R. § 4.130, DC 9411. A 10 percent disability rating is assigned when the evidence demonstrates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is assigned when 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 (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 rating is assigned 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; 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. A 100 percent 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. In assessing the evidence of record, 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 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score in the range of 61 to 70 reflects "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." Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). After reviewing all the lay and medical evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a 70 percent disability rating, but no higher, throughout the rating period from April 14, 2011. The evidence of record reveals social isolation throughout the rating period on appeal, as well as crying spells, irritability, sleep impairment, and depressed mood (see, e.g., February 2012 VA examination report; July 2016 letter from VA psychiatrist, Dr. M.; VA treatment notes from February 9, 2012, March 26, 2012, May 10, 2012, June 21, 2012, November 25, 2013, December 9, 2013, May 27, 2014, January 5, 2015, April 13, 2015, July 13, 2015, January 26, 2016, and April 11, 2016). The Board notes that such symptoms would likely result in deficiencies in most areas, including work, family relations, judgment, thinking, and mood - the criteria for a 70 percent rating. In addition, the Veteran's treating and examining physicians have stated that his psychiatric symptoms would cause significant occupational impairment at a level commensurate with a 70 percent disability rating. For instance, the February 2012 VA examiner stated that the Veteran is capable to work on a full-time basis from a mental health point of view; however, he would clearly be irritable, anxious, occasionally angry, and withdrawn at any place of work. Moreover, the examiner stated that he would not be able to provide leadership skills or executive functions, and would need to work in relative isolation. Finally, the VA examiner stated that he would not be able to handle significant persistent emotional stress or close interaction with co-workers and superiors. Further, in his July 2016 letter, Dr. M., the Veteran's VA treating psychiatrist, stated that the Veteran continued to have problems with sleep, irritability, and isolation, and recommended that the Veteran apply for disability retirement, as finding a full-time job had become extremely difficult. The Board acknowledges that there is some evidence against the assignment of a 70 percent disability rating. For instance, the Veteran's former treating psychiatrist deemed his depression to be in remission beginning in April 2011 until February 2012. In addition, Dr. M., who wrote the July 2016 letter referenced above, noted in January and April 2015 that the Veteran still had some symptoms of sadness, but that his major depression symptoms seemed to have resolved. The Veteran also reported in November 2013 that his depressive symptoms were worse in the winter months and that he addressed those symptoms by engaging socially in order to elevate his mood, weighing against a 70 percent disability rating. Further, the Veteran's speech has been consistently normal and he has been fully oriented. There are no obsessional rituals, and the evidence does not demonstrate near-continuous panic or depression that affects the ability to function independently, appropriately, or effectively. Indeed, on several occasions, such as in June 2011, he denied feeling depressed. His treating and examining physicians have deemed him able to perform his activities of daily living (in the context of his service-connected psychiatric disability). In addition, his GAF scores have ranged mostly from 65 to 67, which reflect mild symptoms (see, e.g., February 2012 VA examination report; VA treatment notes dated June 23, 2011, December 22, 2011, February 9, 2012, May 10, 2012, June 21, 2012, May 9, 2013). Despite the evidence against a 70 percent disability rating, the Board finds that, in light of his social isolation and symptoms of crying spells, irritability, sleep impairment, and depressed mood, the evidence is at least in relative equipoise as to whether the Veteran's psychiatric disability has resulted in deficiencies in most areas. Resolving reasonable doubt in his favor, the Board finds that a 70 percent disability rating is warranted for the rating period from April 14, 2011. Further, the weight of the evidence is against the assignment of a 100 percent rating for any part of the rating period on appeal, because the evidence does not demonstrate total occupational and social impairment. In addition to the evidence weighing against a 70 percent disability rating discussed above, which weighs heavily against the assignment of an even higher 100 percent disability rating, the evidence demonstrates that the Veteran continues to work on a part-time basis and that he has some positive relationships with family members and friends. For instance, as noted above, in November 2013, he reported that when he felt depressed, he surrounded himself with friends and family. In addition, he testified at the Board hearing that he occasionally sees his children and that he attends church weekly. These descriptions of his relationships and interactions with others weigh against a finding of total occupational and social impairment and the assignment of a 100 percent disability rating. Further, none of the symptoms listed in the 100 percent disability rating category are demonstrated by the evidence. 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify and assist was discussed in the Board's July 2016 decision and will not be reiterated here. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel Copy mailed to: Virginia Department of Veterans Services Department of Veterans Affairs