Citation Nr: 1803506 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-15 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for service-connected mood disorder for the period prior to January 24, 2014, and in excess of 70 percent thereafter. 2. Entitlement to total disability based on individual unemployability (TDIU) for the period prior to January 24, 2014. REPRESENTATION Appellant represented by: Nancy Lavranchuk, Agent ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1991 to October 1991, and January 1993 to March 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2011 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. In the September 2011 rating decision, the RO granted service connection and assigned an initial 50 percent for mood disorder, NOS, effective January 5, 2011. In the March 2014 rating decision, the RO granted a higher 70 percent rating for the service-connected mood disorder, NOS, effective January 24, 2014. While the RO has assigned a higher rating for the Veteran's service-connected mood disorder, NOS, because higher ratings are available before and after January 24, 2014, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher initial rating for mood disorder, NOS remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that in a November 2015 remand, the Board indicated that, in a March 2014 rating decision, the RO granted entitlement to TDIU with an effective date of January 24, 2014. In April 2014, the Veteran filed a notice of disagreement with the effective date for the grant of TDIU. The RO issued a statement of the case in September 2014, but the Veteran had not filed a substantive appeal on that issue. The Board determined that, given that the TDIU issue has been bifurcated, and the Veteran did not perfect his appeal as to his effective date for TDIU, the issue was not before the Board. Upon further review, the Board finds that the issue of entitlement to a TDIU for the rating period prior to January 24, 2014 is properly before the Board for consideration. In this regard, the Board's prior November 2015 remand listed the TDIU issue on the title page, but did not formally dismiss the claim. Further, despite the Veteran's decision to not formally appeal the earlier effective date claim for a TDIU, the Board finds that the issue remains on appeal as it is part and parcel of the increased psychiatric claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will address whether entitlement to a TDIU is warranted for the rating period prior to January 24, 2014. FINDINGS OF FACT 1. For the rating period prior to January 24, 2014, the Veteran's psychiatric symptoms more nearly approximately occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. 2. For the entire rating period on appeal, the Veteran's PTSD has not been manifested by total social impairment. 3. For the rating period prior to January 24, 2014, the Veteran's service-connected psychiatric disability prevented him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the rating period prior to January 24, 2014, the criteria for a 70 percent rating, but no higher, for a mood disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). 2. For the rating period beginning January 24, 2014, the criteria for a rating in excess of 70 for a mood disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). 3. The criteria for a TDIU have been met for the rating period prior to January 24, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In this case, neither the Veteran nor his 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). Laws and Analysis for Mood Disorder Disability Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's mood disorder is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9435 (2017). Ratings are assigned according to the manifestation of particular symptoms. 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 a veteran's occupational and social impairment. Vazquez-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; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that 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. Vazquez-Claudio, 713 F.3d at 118. The Veteran is in receipt of a 50 percent disability rating for his mood disorder under Diagnostic Code 9435 for the rating period prior to January 24, 2014. A 50 percent disability rating requires evidence of the following: 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. Beginning January 24, 2014, the Veteran is in receipt of a 70 percent rating. The criteria for a 70 percent rating are: 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 worklike setting; inability to establish and maintain effective relationships.). The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). DSM-IV at 46-47. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board prior to August 11, 2014, the DSM-5 is not applicable to this case. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board recognizes that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores 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) (2017). The Veteran maintains that his service-connected mood disorder disability is more severe than what is contemplated by the currently assigned 50 and 70 percent ratings. The evidence includes a May 2011 VA examination. During the evaluation, the Veteran stated that his mental health symptoms included irritability, depression, lack of motivation, low interest in activities, and social isolation. He denied suicidal or homicidal ideations. The Veteran indicated that in February 2010 he was admitted to the VA medical center for substance abuse issues. Although not reflected in the admissions notes, the Veteran indicated that his drinking and cocaine binge was with suicidal intent. The Veteran indicated that he was currently living with his wife and children. He reported a great relationship with his step-son and the step-son's father. Upon mental status examination, the Veteran's affect was normal, but his mood was anxious and depressed. Thought process was described as rambling and racing. Impulse control was fair. A GAF score of 60 was noted, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. Regarding employment, the Veteran indicated that he last worked in July 2009 after being laid off. The Veteran reported problems getting along with co-workers. VA treatment records include a May 2012 VA psychiatry note, where the Veteran indicated that he had relapsed (use of cocaine) a few days ago. The Veteran's wife indicated that the Veteran became easily irritated and had racing thoughts and insomnia. Upon mental status examination, the Veteran's affected was blunted. In a November 2013 VA mental health note, the Veteran was noted to have a history of bipolar affective disorder. The Veteran reported an episode in October 2013 where he felt very irritable and had insomnia. Upon mental status examination, the Veteran's mood was anxious and his insight and judgment were fair. A GAF score of 55 was noted, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Veteran was afforded another VA examination in January 2014. The examiner diagnosed the Veteran with "moderate to severe" major depressive disorder. The examiner specifically indicated that the Veteran's mental disorder related in "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." Notably, during the evaluation, the Veteran reported no changes since his last VA examination, except for increased social withdrawal. Symptoms were noted to include: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. VA treatment records include a March 2014 admission note. The Veteran indicated that he had experienced a bad episode last week and left his family at home and ran off. He described feelings of anxiousness, depression, confusion, and "nerves." The evidence also demonstrates that the Veteran was admitted in June 2014 and September 2014 to the Substance Rehab Therapy Program (SARRTP) for assistance with substance abuse. The Veteran explained that he felt very depressed, had increased anger, and was isolating from his family. Pursuant to the Board's remand, the Veteran was afforded another VA examination in December 2016. The examiner again indicated that the Veteran's mental disorder related in "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood." During the evaluation, the Veteran reported ongoing emotional distress. He described "manic episodes" during which he would become enraged resulting in him "beating a trash can" and having verbal outbursts. The Veteran reported that he could not focus or concentrate during these episodes and would remove himself from his family when this occurred. He also reported a lack of motivation to complete tasks. His wife was also noted to prompt him to shower and take his medication. In 2015, the Veteran reported completing the SARPT at the Salisbury hospital. The Veteran reported using cocaine in the spring of 2015, but denied ongoing use of drugs. Symptoms were noted to include: depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran denied any suicidal or homicidal ideation. Upon review of all the evidence of record, both lay and medical, the Board finds that, for the rating period prior to January 24, 2014, the evidence is at least in equipoise as to whether the criteria for a higher rating of 70 percent is warranted, as the Veteran's mood disorder symptoms more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking, and mood. As discussed in detail above, the Veteran has experienced continuous and consistent symptoms of rambling and racing thought processes, chronic sleep impairment, near- continuous anxiety and depression, impaired impulse control, and difficulty in adapting to stressful circumstances. The Veteran also sought treatment for substance abuse with increased psychiatric symptoms during this time. Notably, the January 2014 VA examiner indicated that the Veteran had no changes in his psychiatric symptomatology since his last VA examination, except for increased social withdrawal. As such, the Board finds that the Veteran's symptoms, which have been found by the AOJ to meet the 70 percent rating criteria, were present for at least some part of the rating period prior to the January 2014 VA examination. Accordingly, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 70 percent disability evaluation is warranted for the rating period prior to January 24, 2014. The Board further finds that, for the entire rating period on appeal, the Veteran's mood disorder does not more nearly approximate a 100 percent disability evaluation. The Board finds that weight of the lay and medical evidence shows that his symptoms do not demonstrate total 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. See 38 C.F.R. § 4.130. In reaching this conclusion regarding the degree of occupational and social impairment, the Board has considered all the Veteran's psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as "like or similar to" the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA's general rating formula for mental disorders is 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, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under § 4.130 is "symptom-driven" and "a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). With this in mind, the evidence shows that the Veteran's overall picture is already adequately contemplated by the 70 percent rating, granted herein. The Veteran does experience disturbance of motivation and mood (depression and anxiety), and difficulty sleeping, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria. The same is true with the Veteran's near-continuous depression, anxiety, and difficulty in establishing and maintaining relationships, which are all symptoms contemplated under the 70 percent rating criteria. Further, although the Veteran has been found to have intermittent inability to perform some activities of daily living (i. e., maintenance of minimal personal hygiene), the Board finds that this does not rise to the level of total impairment. The Veteran remains married and indicated that he has a good relationship with his children. He has also indicated having a supportive family and friends and reported being active in his church. See e. g., May 2014 VA treatment record. In sum, and although the Veteran has been found to have some social isolation and decreased motivation, at no time during the appeal period have any examiners indicated that the Veteran's psychiatric disorder has resulted in total social impairment. For these reasons, the Board finds that a rating in excess of 70 percent for PTSD is not warranted. Laws and Analysis for a TDIU A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). In a March 2014 rating decision, the Veteran was granted a TDIU effective January 24, 2014. The AOJ indicated that a TDIU was being assigned as of January 2014 because this was the date that the Veteran met the schedular requirement for entitlement to this benefit. As the Veteran is now in receipt of a 70 percent rating for the entire rating period on appeal, the Board finds that the Veteran meets the schedular criteria for the entire rating period prior to January 24, 2014. Further, the evidence demonstrates that the Veteran is unemployable as a result of his service-connected psychiatric disability for the rating period prior to January 24, 2014. In a June 2011 letter from Richard G. Myers, MSW, LCSW at the Charlotte VA Outpatient Mental Health Clinic, it was noted that the Veteran had been an active patient since 2009. Mr. Myers indicated that the Veteran was discovering that the possibility of maintaining employment was becoming increasingly unrealistic and in some instances, unsafe. In an April 2013 letter from a staff psychiatrist with Charlotte CBOC, it was noted that the Veteran had been a patient since 2012. The psychiatrist noted that, despite treatment compliance, the Veteran struggled with high anxiety levels, insomnia, irritability, short attention span, and memory problems. The psychiatrist opined that, in her professional opinion, the Veteran was disabled and not capable of gaining and maintaining stable employment. Social Security Disability records also reveal that the Veteran was found be disabled due to, in part, his mood disorder. For these reasons, and upon review of all the evidence of record, the Board finds that the weight of the probative evidence supports a finding that the Veteran has been unable to follow a substantially gainful occupation as a result of all the service-connected mood disorder disability throughout the rating period on appeal prior to January 24, 2014. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU have been met prior to January 24, 2014. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. The Board also notes that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim" and remanding, pursuant to VA's duty to maximize benefits, for VA to determine whether the Veteran's posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Currently, the Veteran has no service-connected disability other than his mood disorder disability. As such, the provisions for SMC under 38 U.S.C. § 1114 (s) involving a veteran who has a total (100 percent) disability rating for one service-connected disability, in addition to another disability rated as at least 60 percent disabling, are not for application at the present time. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER For the rating period prior to January 24, 2014, a 70 percent rating, but no higher, for the service-connected mood disorder is granted, subject to the laws and regulations governing monetary benefits. For the rating period beginning January 24, 2014, a rating in excess of 70 percent for the service-connected mood disorder is denied. Entitlement to a TDIU for the rating period prior to January 24, 2014, is granted, subject to the laws and regulations governing monetary benefits. ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs