Citation Nr: 1802958 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-20 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement an evaluation in excess of 30 percent for unspecified depressive disorder with anxious distress associated with degenerative arthritis of the lumbar spine prior to September 13, 2017, and in excess of 50 percent thereafter. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1972 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2016 in Winston-Salem, North Carolina. The transcript is of record. This matter was previously before the Board in June 2017, at which time it was remanded for further development. It has been returned to the Board for appellate review. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Throughout the appeal period, the Veteran's mental symptoms have resulted in occupational and social impairment with reduced reliability and productivity, but there has been no showing of deficiencies in most areas, nor of total occupational and social impairment. CONCLUSION OF LAW The criteria for a 50 percent disability rating for depression with anxious distress have been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 4.1 4.3, 4.7, DC 9435 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vasquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has sent the Veteran letters throughout the appeal period which set out the type of evidence needed to substantiate the claim. The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran underwent VA examinations in July 2015 and September 2017. The Board finds the September 2017 examination adequate, because it includes a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to an evaluation in excess of 30 percent for unspecified depressive disorder with anxious distress associated with degenerative arthritis of the lumbar spine prior to September 13, 2017, and in excess of 50 percent therefrom The Veteran's service connected depression with anxious distress has been evaluated under 38 C.F.R. § 4.130, DC 9435. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. A 30 percent rating contemplates 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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 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. A 100 percent 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 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 must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Turning to the evidence of record, the Veteran has a longstanding history of psychiatric problems, with evidence from the current appeal period showing ongoing depression and bouts of anxiety, with periodic panic attacks, associated with and worsened by a range of debilitating physical symptom including back pain and neurological problems affecting the lower extremities. The Veteran is service connected for a lumbar disability. The record during the current appeal period reflects psychiatric treatment, including counseling and the use of psychotropic medications. The Veteran has consistently reported that his medication has been of limited use in managing his symptoms. VA treatment records throughout 2016 characterize the Veteran's symptoms as "severe," reflecting recurrent, severe panic attacks and ongoing depression and social isolation. The Veteran was afforded a VA psychiatric examination in July 2015. That examiner noted the Veteran's depressed mood and limited affective expression, but indicated the Veteran was cooperative, with good eye contact, full orientation in all spheres, and logical, goal-directed thought processes. Hygiene was good, insight and judgment were intact, and there was no evidence of perceptual disturbance, delusions, or hallucinations. Homicidal and suicidal ideation was denied. The examiner noted the Veteran reported attending football games, enjoying boating, and managing normal routine self-care without assistance. The Veteran indicated he was married, with no difficulties in his relationship with family. However, the Veteran did report frequent agitation, depression, social isolation and sleep problems. The examiner concluded the Veteran's symptoms conferred occupational and social impairment with only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Because the examiner did not address adequately the Veteran's contentions of cognitive issues, including memory loss and cognitive deficits, or the Veteran's arguments that his physical limitations impact his mental symptoms, the Board finds the opinion incomplete, and ordered a second VA examination. That examination was conducted in September 2017. The Veteran complained of ongoing panic attacks and social anxiety, noting exposure to larger groups of people often triggered panic attacks. He endorsed frequent bouts of general anxiety and road rage. The Veteran did acknowledge his family relationships were sound, adding he played frequently with his grandchildren. Personal hygiene was within normal limits, the Veteran was oriented to time and place, there was no grossly inappropriate behavior demonstrated, the Veteran was free of delusions and hallucinations, there was no evidence of spatial disorientation, the Veteran reported no obsessional rituals, there was no sign of impaired self-control, and no suicidality. The examiner concluded, based on a review of the record and examination of the Veteran, that his symptoms resulted in reduced reliability and productivity. The Board finds that, based on the evidence of record, including the aforementioned VA treatment records, that the level of debilitation demonstrated at the September 2017 VA examination has been present throughout the current appeal period. In reviewing the record covering the appeal period, the Board finds the documented symptomatology most closely approximates the symptomatology contemplated in the criteria associated with a 50 percent disability rating for the entire period on appeal. The Veteran has documented persistent disturbances of mood, difficulty in establishing and maintaining relationships, social avoidance, and recurrent panic attacks. While the record does not reflect the presence of all the criteria associated with a 50 percent rating, considering the overall disability picture, the Board finds that the Veteran's symptomatology equates in frequency, duration, and severity to the level of occupational and social impairment with reduced reliability and productivity contemplated for that rating. However, the evidence does not support a finding of occupational and social impairment with deficiencies in most areas such as family relations, work, school, mood, judgment and thinking, as contemplated by the criteria for a 70 percent rating. For instance, the Veteran has never claimed suicidal ideation, and has never been characterized by treating or examining providers as at risk of harm to himself or others. The record is bare of evidence of obsessional rituals, or illogical or irrelevant speech or thought. The Veteran has not demonstrated impaired impulse control, characterized by violent outbursts, as the record reflects no documented violent episodes, or contact with law enforcement. There is no indication the Veteran has experienced spatial disorientation due to his depression or anxiety, and his hygiene and appearance are consistently noted to be within normal limits. Nor do his symptoms equate in severity, frequency and duration to the 70 percent criteria. He has maintained family relations, and has not demonstrated significant problems with judgment or thinking. Further, there is no indication of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes, nor by delusions or hallucinations. There is no indication he has engaged in grossly inappropriate behavior, and although there is evidence of memory loss, there is no indication it rises to the level of forgetting the names of close relatives, or of the Veteran's own name. Accordingly, the Board does not find that the criteria for either a 70 percent rating or a 100 percent rating are satisfied in this case. In sum, the Veteran's symptomatology, as captured by the medical record covering the period at issue, most closely approximates that contemplated in the criteria associated with a 50 percent disability rating. Accordingly, a 50 percent rating for depression with anxious distress, but no higher, is warranted for the entirety of the appeal period. ORDER Entitlement to a 50 percent rating, but no higher, for depressive disorder with anxious distress, is granted for the entire appeal period. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs