Citation Nr: 1803658 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 07-03 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of 30 percent for depressive disorder prior to August 29, 2013, and in excess of 70 percent thereafter. REPRESENTATION Appellant represented by: ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from December 1969 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico, which awarded service connection for depressive disorder and assigned a 30 percent rating, effective July 11, 2006, and a 70 percent rating from August 29, 2013. In July 2017 correspondence, the Veteran, through his attorney, requested an earlier docket number for his appeal. In September 2017 correspondence, the Board advised the Veteran that his motion had been granted, and the appeal has been assigned the 2007 docket number as reflected on the title page of this decision. The issues of entitlement to higher ratings and earlier effective dates for depressive disorder are downstream issues arising out of the Veteran's original service connection claim for psychiatric disorder. See Vargas-Gonzales v. Principi, 15 Vet. App. 222 (2001). FINDING OF FACT For the entire period on appeal, the Veteran's depressive disorder symptoms most nearly approximated total occupational and social impairment. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 100 percent initial rating for depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, DC 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Increased Initial Rating - Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). 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 favorable to the claimant. 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. 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. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Increased Initial Rating Claim for Depressive Disorder - Analysis The Veteran is in receipt of an initial 30 percent disability rating for depressive disorder prior to August 29, 2013, and a 70 percent rating thereafter, under 38 C.F.R. § 4.130, DC 9434 (2017). All psychiatric disabilities are evaluated under a general rating formula for mental disorders. A 30 percent rating is warranted for 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted 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 effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in March 2016; therefore, the claim is governed by DSM 5. However, the amended regulations made no change to the symptomatology assigned to each of the disability ratings provided for in the General Rating Formula for Mental Disorders. The Board notes that the use of the GAF scale has been abandoned in the DSM 5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). However, DSM-IV was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 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, and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). Scores ranging from 51 to 60 reflect more 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). Id. at p. 47. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. Scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech 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., depressed man avoids friends, neglects family, and is unable to work). Id. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant 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). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation, but are not meant to be exhaustive. Id. Turning to the evidence, a May 1972 VA treatment record indicated that the Veteran complained that noises made him irritable and he felt people were watching him when he left the house. He was always depressed and at times would forget what he was doing. He had suicidal ruminations and his ability to concentrate was diminished. He was diagnosed with "moderately severe" depressive neurosis, less than one year after service separation. An October 1975 VA discharge summary indicated that the Veteran had nightmares, hallucinatory experiences, and sudden outbursts of aggressiveness. He was delusional and had self-aggressive ruminations. He described hypnopompic visual hallucinations. He was severely depressed, with a blunted affect. He had no insight and poor judgment. A November 1975 private psychological evaluation report indicated that the Veteran had a history of hypnopompic visual and auditory hallucinations. He had made several suicide attempts. He had suicidal and homicidal ideas at the time of the interview. His memory was poor for recent and remote events. A May 1980 VA treatment note indicated that the Veteran was hearing voices. A December 1980 VA discharge summary indicated that the Veteran complained of depressive ideas, suicidal ideas, and hearing voices. He had paranoid ideations and referred audiovisual hallucinations. A March 1981 VA discharge summary indicated that the Veteran was admitted with ideas of hostility and hurting his wife, as well as hearing voices telling him to walk away. The Veteran also reported visual hallucinations of people hanging and seeing caskets and a spiral hole with himself going down. He had suicidal ideas, visual and auditory hallucinations, poor judgment, and poor insight. A June 1982 private treatment record indicated that the Veteran heard "voices that tell him bad things, that they are going to kill his family." An October 1982 psychological evaluation report indicated that the Veteran had serious problems controlling his impulses and was very aggressive. The psychologist noted that the Veteran had a history of multiple hospitalizations and loss of control. In July 2001, the Veteran indicated that he sometimes needed help getting dressed and with bathing and cooking. He stated that he needed to be accompanied when he left home because he would forget the place or fall asleep in the car. The Veteran reported being easily angered, frequently depressed, and nervous. A September 2001 VA treatment note indicated that the Veteran had been physically and verbally aggressive with his wife. He and his wife were separated, but she still handled his finances. An August 2001 private psychiatric evaluation report indicated that the Veteran was depressed, had been aggressive, was unable to do any type of task, and" could be a dangerous person for his family or any other person." An October 2002 VA treatment record indicated that the Veteran was depressed. He was unable to recall his medications' names, indications, or frequency of administration. His wife administered his medicines, despite not living in the same house. A February 2003 VA treatment note indicated that the Veteran reported symptoms of depression, family problems, agitation, memory loss, and suicidal thoughts. He was living alone in a room, had erratic meals, and had poor communication with his family. A February 2005 VA treatment note indicated that the Veteran had ideas of harming himself, without a structured plan. The Veteran reported hearing an unfamiliar voice that told him to harm himself and his family. The treating physician noted that the Veteran had a history of suicidal gesture in which he tied a belt around his neck to kill himself in front of his wife. A November 2005 VA treatment record indicated that the Veteran had marital problems and lived in "a little place adjacent to" his house. The Veteran reported hearing voices and seeing black shadows at night. A June 2006 VA treatment record indicated that the Veteran had been feeling depressed, was unable to sleep, and at times had had a sensation of hearing voices. During the May 2007 DRO hearing, the Veteran stated that he had frequent confrontations with people and trouble completing thoughts. The Veteran's wife testified that he sometimes did "not know what day he lives in." She stated that he fought about everything. She stated that she was afraid that he would harm their daughters or himself. She stated that he had physically attacked her, but that he did not remember doing so. His wife stated that she administered his medicine, did the grocery shopping and cooking, and took care of all of the housework. The Veteran was afforded a VA examination in August 2013. The VA examiner stated that the Veteran's mental diagnoses resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported that he stayed isolated and distant from others, but that he enjoyed being with his grandchildren. During the examination, the Veteran was dependent on his wife for history information. He reported episodes of memory difficulties, concentration difficulties, relationship difficulties, concentration difficulties, and hearing voices at times. The VA examiner stated that there was no evidence of active delusion or hallucinations. The Veteran was oriented in person and place, but only partially oriented in time. He presented some past and recent memory difficulties, but his cognitive functions were otherwise preserved. His insight and judgment were superficial. The VA examiner stated that the Veteran had symptoms of depressed mood, anxiety, 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, and disorientation to time or place. An August 2013 VA treatment note indicated that the Veteran had recently been discharged from a psychiatry inpatient unit for treatment for depressive symptoms with suicidal ideas. He reported having memory problems, such as forgetting why he went into a room and forgetting the names of things that he knew well. He had no current delusions or hallucinations. He was fully oriented and memory was grossly intact. A GAF score of 60 was assigned. The Veteran was afforded a VA examination in July 2015. The VA examiner stated that the Veteran's mental diagnoses caused occupational and social impairment with reduced reliability and productivity. The Veteran was on probation due to killing an individual who was in his house. The VA examiner stated that the Veteran's ability to perform adequately in a structured job environment was seriously compromised by his depressive disorder. An April 2016 VA treatment note indicated that the Veteran had suicidal ideas and reported hearing voices that tell him negative things. He had intermittent death wishes and difficulty sleeping. After a review of all evidence of record, both lay and medical, the Board finds that the Veteran's depressive disorder symptoms most nearly approximate the criteria for a 100 percent rating for the entire period on appeal. The evidence demonstrates that the Veteran has had persistent auditory hallucinations throughout the period on appeal. The evidence also indicates that he has frequently been deemed as being in danger of harming himself and others. Further, he has been intermittently disoriented as to time or place, and unable to perform activities of daily living, such as preparing his own food, shopping, and administering his medicine. For these reasons, the probative evidence supports a finding that the Veteran's depressive disorder results in total occupational and social impairment, as the rating criteria specifically contemplate the Veteran's symptoms of persistent hallucinations, intermittent inability to perform activities of daily living, disorientation to time and place, and persistent danger of hurting self or others. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's depressive disorder symptoms more nearly approximate the criteria under DC 9434 for a 100 percent disability rating for the entire period on appeal. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130 (2017). A 100 percent rating is granted herein for depressive disorder for the entire period on appeal. In light of Buie v. Shinseki, 24 Vet. App. 242, 250 (2010) and Bradley v. Peake, 22 Vet. App. 280 (2008), and VA's obligation to maximize the Veteran's benefits, the Board considered whether the Veteran meets the criteria for a TDIU based on the impact of his remaining service-connected disability of chronic duodenal ulcer disease rated as 20 percent disabling. Significantly however, there is no such suggestion or indication this disability alone would render him unemployable. Thus, the granting of the 100 percent schedular rating for his depressive disorder renders moot any claimed entitlement to a TDIU for the entire period on appeal. See Vettese v. Brown, 7 Vet App. 31 (1994) (observing that a "claim for TDIU presupposes that the rating for the condition is less than 100 percent"); Holland v. Brown, 6 Vet App. 443 (1994). ORDER For the entire period on appeal, an initial rating of 100 percent for depressive disorder is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs