Citation Nr: 18158583 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-61 833 DATE: December 18, 2018 ORDER Entitlement to a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2013 is remanded. FINDING OF FACT The evidence does not demonstrate that the Veteran’s adjustment disorder with mixed anxiety and depressed mood manifests with symptoms that more nearly approximates total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.130, Diagnostic Code 9440 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to December 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that during the course of this appeal, the Veteran’s claims included entitlement to service connection for a low back condition. In a December 2016 rating decision, the RO granted service connection for degenerative disc disease lumbar spine (claimed as low back condition) effective August 12, 2011. Therefore, the benefit sought for this claim has been granted in full and is no longer before the Board. Entitlement to a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood Disability evaluations 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 his 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. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods, or “staged ratings” based on the facts found during the appeal period. See id. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran has asserted that her service-connected adjustment disorder is more severe than contemplated by the assigned evaluations. The Veteran’s adjustment disorder with mixed anxiety and depressed mood is rated under Diagnostic Code 9440 and utilizes the General Rating Formula for Mental Disorders (General Rating Formula), which is used to assign ratings ranging between 0 and 100 percent. Under the General Rating Formula, a 70 percent rating is assigned when a psychiatric disorder causes 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. 38 C.F.R. § 4.130, Diagnostic Code 9440. A maximum 100 percent rating is assigned for a psychiatric disorder that causes 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. Prior to August 4, 2014, diagnoses many times included an Axis V diagnosis, or 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. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). The use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See DSM-5, p. 16 (2013). In this case, however, the DSM-IV was in use at the time some medical entries of record were made. Thus, the GAF scores assigned remain relevant for consideration in this appeal. Id. The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score 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, and with some meaningful interpersonal relationships. A GAF score of 71 to 80 represents no more than slight impairment in social, occupational, or school functioning. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). An assigned GAF score, like an examiner’s assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126 (a). Accordingly, an examiner’s classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). For the period on appeal, the Board finds that the Veteran’s symptoms of her adjustment disorder most closely approximate the rating criteria for a 70 percent rating throughout the appeal period. In an August 2012 VA treatment record, the treating physician noted depression. The Veteran denied suicidal and homicidal ideation. In a September 2013 VA treatment record, the Veteran reported doing “o.k.” overall. Upon examination, the Veteran was alert and lucid. Mood was euthymic; affect was appropriate and mood was congruent. Concentration was good. There were no apparent delusions, hallucinations, or psychotic symptoms of any kind. The Veteran denied suicidal and homicidal ideation. The Veteran was assigned a GAF score of 68. In a November 2013 VA examination, the examiner noted a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran stated that she had been married 17 years. She said her siblings lived in different states and that she talked to her sisters often. The Veteran reported that she was not on medication for depression and had concluded group treatment. The Veteran said she felt sad, angry and had anxiety attacks. She said she could not sleep well due to changing her position causing pain and she would become angry quickly and overreact. She said she did not trust others and did not trust her own judgment when angry. The examiner noted the following symptoms: depressed mood; anxiety; panic attacks that occurred weekly or less often; and chronic sleep impairment. The examiner assigned a GAF score of 60. In a March 2014 VA treatment record, the Veteran was noted to demonstrate good insight. She was alert and lucid. Mood was euthymic and affect was happy. Concentration was good, and there were no apparent delusion, hallucinations, or psychotic symptoms of any kind. There was no evidence of suicidal or homicidal ideation. In a June 2014 disability benefits questionnaire (DBQ), the examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. It was noted that the Veteran was married and lived with her husband. The Veteran reported poor appetite as well as difficulty sleeping due to pain. She had difficulty dealing with people and was easily irritated. She did not have any hobbies, did not drive, but would sometimes shop. The Veteran did not take any psychotropic medication and was not in counseling. The examiner noted the following symptoms: depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner also noted poor concentration. In an April 2015 VA treatment record, the Veteran reported that she had changed her mind about working on her marriage as she discovered that her husband had been unfaithful. She was feeling more depressed but denied any suicidal ideation, plan, or intent. She was dealing with the recent loss of her sister and her marriage. In a June 2015 VA treatment record, the Veteran stated that her depression and anxiety had worsened in the context of losing her sister and learning of her husband’s affairs. Upon examination, the Veteran was alert and oriented. Mood was depressed, anxious. Appearance was neat, speech was normal, and memory was grossly intact. Insight was good and judgment was intact. Language was intact and perceptions was reality based. Thought process and association was goal oriented, logical. Thought content was relevant to discussion. There was no suicidal or homicidal ideation; however, the Veteran did report that during the height of marital distress, she had fleeting, passive thoughts of death without intent or plan. In a September 2015 VA treatment record, the Veteran was noted to be mildly depressed/anxious with congruent affect. There was no suicidal or homicidal ideation. She was casually dressed and adequately groomed. She was also fully oriented with clear and coherent speech. There were no signs of mania. The Veteran was noted to have improved PTSD and recurrent, mild major depressive disorder. In a June 2016 VA treatment record, the Veteran was noted to be moderately depressed/anxious with congruent affect. There was no suicidal or homicidal ideation. She was casually dressed and fully oriented with clear and coherent speech. There were no signs of mania. She was future oriented with plans to continue divorce proceedings and eventually expand business at ranch. The Veteran was noted to have improved PTSD with recurrent, mild major depressive disorder with anxious distress. In a July 2016 VA treatment record, it was noted that the Veteran’s major depressive disorder was in remission. The Board notes that in a December 2016 rating decision, the RO granted an increased rating for the Veteran’s adjustment disorder with mixed anxiety and depressed mood from 30 percent disabling to 70 percent disabling, effective August 3, 2012. The Board finds that the evidence does not reflect that an evaluation in excess of 70 percent is warranted for any period on appeal. Throughout the appeal period, the Veteran has not demonstrated total occupational and social impairment due to her adjustment disorder with mixed anxiety and depressed mood. As described above, the Veteran was married for almost 20 years before divorcing her husband following an affair. She reported good relationships with both of her sisters, despite 1 of them passing away. The evidence also does not support symptoms of hallucinations or delusions, suicidal attempts, homicide attempts or ideation, or impairment in judgment, orientation to time or place, or severe impairment in memory or thought process. The Veteran was consistently found to be adequately groomed and dressed despite the June 2014 examiner’s finding that the Veteran had intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In fact, the records seem to show improvement in the Veteran’s symptoms as a July 2016 VA treatment record found the Veteran’s major depressive disorder to be in remission. The Veteran consistently reported that she did not take any medications or partake in counseling. Any evidence of increased anxiety and depression was found to be related to the Veteran’s recent issues with her marriage and the passing of her sister. Finally, the Veteran has been assigned GAF scores ranging from 60 to 68. These scores are associated with mild symptoms. Overall, the Veteran’s symptoms do not show that the Veteran suffers from total occupational and social impairment that would warrant a 100 percent disability rating. The Board acknowledges that the Veteran, in advancing this appeal, believes that her adjustment disorder with mixed anxiety and depressed mood is more severe than the assigned disability rating reflects. In this regard, she is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran’s descriptions of symptoms. The lay evidence has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 70 percent for her adjustment disorder with mixed anxiety and depressed mood. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher or separate ratings, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102. Neither the Veteran nor her 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, 369-370 (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). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2013 is remanded. In a July 2017 notice of disagreement, the Veteran argued for increased ratings and earlier effective dates for her service-connected adjustment disorder with mixed anxiety and depressed mood, degenerative disc disease lumbar spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. The Board notes that the increased rating claim for the Veteran’s adjustment disorder with mixed anxiety and depressed mood has been addressed above; however, the RO has not addressed this new issue of an earlier effective date for the Veteran’s adjustment disorder with mixed anxiety and depressed mood. As these issues have not been adjudicated by the RO, the Board finds that the issue of TDIU prior to June 1, 2013, is inextricably intertwined with the outcome of the newly raised claims. Therefore, upon remand, the RO must adjudicate the issues of earlier effective dates for service-connected adjustment disorder with mixed anxiety and depressed mood, degenerative disc disease lumbar spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. The RO must also adjudicate the issues of increased ratings for service connected degenerative disc disease lumbar spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. Finally, in the June 2017 Appellate Brief regarding earlier effective date for individual unemployability, the Veteran’s representative pointed to new evidence which included a lay statement from the Veteran, a vocational opinion from S.B, a Social Security earnings report, and waiver of consideration of evidence by regional office. It would seem that the Appellate Brief was cut off and the record does not include this additional evidence. Therefore, the RO should ensure that this evidence is included in the record. The matter is REMANDED for the following actions: 1. Obtain any outstanding private or VA treatment records. Request that the Veteran assist with locating these records, if possible. Specifically, ensure that the new evidence referenced to by the Veteran’s representative in the June 2017 Appellate Brief, including the lay statement from the Veteran, a vocational opinion from S.B, a Social Security earnings report, and waiver of consideration of evidence by regional office, is included in the claims file. All efforts made to obtain these records should be documented. Associate these records with the claims file. 2. Then, the RO should develop and adjudicate the claims for earlier effective dates for service-connected adjustment disorder with mixed anxiety and depressed mood, degenerative disc disease lumbar spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. The RO must also adjudicate the issues of increased ratings for service connected degenerative disc disease lumbar spine, left lower extremity radiculopathy, and right lower extremity radiculopathy. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, issue the Veteran and her representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel