Citation Nr: 1807496 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-14 800 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a higher initial disability rating for the service-connected acquired psychiatric disorder, in excess to 50 percent from January 11, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's former spouse, and the Veteran's daughter ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1974 to March 1983, and from March 2003 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the RO in Roanoke, Virginia, which granted service connection for an acquired psychiatric disorder and assigned a 50 percent initial disability rating, effective January 11, 2011 (date of claim of service connection). In July 2017, the Veteran testified from the RO in Roanoke, Virginia, at a Board Videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. FINDINGS OF FACT 1. For the entire initial rating period on appeal from January 11, 2011, the acquired psychiatric disorder has more nearly approximated occupational and social impairment with deficiencies in most areas due to such symptoms as: as persistent delusions or hallucinations, impaired impulse control, marked diminished interest or participation in significant activities, irritability or outbursts of anger, isolation-seeking behavior, anxiety, suspiciousness, and the inability to maintain effective work and social relationships. 2. For the entire rating period on appeal from January 11, 2011, the acquired psychiatric disorder was not characterized by total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from January 11, 2011, the criteria for a disability rating of 70 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9208 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose 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, 3.159, 3.326(a) (2017). As the rating issue on appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claims. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have similarly held that regarding the downstream element of the initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability rating and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3159(b)(2) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, the Veteran received VA examinations in April 2012 and June 2012. The VA examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that the VA examiners reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale, including as to occupational and social impairment. All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Initial Rating for Acquired Psychiatric Disorder Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2017). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9208. Pertinent in this case, the General Rating Formula provides that a 50 percent rating is assigned 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be 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); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular 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. 38 C.F.R. § 4.130. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In assessing the evidence of record, it is important to note that 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 DSM-IV at 32). A GAF score of 21 - 30 indicates "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends)." A GAF score of 31 - 40 indicates "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; child frequently beats up younger children, is defiant at home, and is failing at school)." A GAF score of 41-50 indicates "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)." A GAF score of 51-60 indicates "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)." A GAF score of 61-70 indicates "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." The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See Richard, 9 Vet. App at 267; Carpenter v. Brown 8 Vet. App. 240, 243 (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 rating issue. The GAF score must be considered in light of the actual symptoms of a veteran's disorder as they reflect on the degree of occupational and social impairment, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a) (2017). The Veteran contends generally that the service-connected acquired psychiatric disorder has been manifested by more severe symptoms and impairment than contemplated by the 50 percent disability rating assigned from January 11, 2011. At a July 2017 Board hearing, the Veteran testified to isolation-seeking behavior, anxiety, and avoidance of crowds. The Veteran's former spouse and daughter testified to observing irritability, isolation-seeking behavior, paranoia, anxiety, suspiciousness, and impaired thought process. After a review of the lay and medical evidence, the Board finds that, for the entire rating period on appeal from January 11, 2011, the severity of the psychiatric symptoms more nearly approximate the criteria of occupational and social impairment with deficiencies in most areas for a 70 percent rating under Diagnostic Code 9208. The Board finds that during the initial rating period from January 11, 2011, the acquired psychiatric disorder has resulted in occupational and social impairment with deficiencies in most areas, due to symptoms as persistent delusions or hallucinations, impaired impulse control, marked diminished interest or participation in significant activities, irritability or outbursts of anger, isolation-seeking behavior, anxiety, suspiciousness, and the inability to maintain effective work and social relationships. A March 2011 VA treatment record reflects that the VA examiner assigned a GAF score of 30, suggesting serious impairment in communication or judgment. Subsequently, the April 2012 VA examiner specifically assessed marked diminished interested or participation in significant activities, irritability or outbursts of anger, impaired judgment, and chronic sleep impairment. Further, a June 2012 VA examination report reflects that the VA examiner specifically assessed suspiciousness, chronic panic or depression, impaired judgement, the inability to establish and maintain effective relationships, impaired impulse control, and persistent delusions or hallucinations. In addition, at the July 2017 Board hearing, the Veteran testified to isolation-seeking behavior, and the Veteran's former spouse and daughter testified to observing irritability, isolation-seeking behavior, paranoia, anxiety, suspiciousness, and impaired thought process. For these reasons, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that, for the entire rating period from January 11, 2011, a 70 percent disability rating is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board also finds that, for the rating period on appeal from January 11, 2011, the level of occupational and social impairment due to acquired psychiatric disorder symptoms have not met or more nearly approximated the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal from January 11, 2011, the record does not indicate total occupational and social impairment. The evidence does not show symptoms suggestive of total occupational and social impairment, such as grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, as required for a 100 percent disability rating under Diagnostic Code 9208. Specifically, a review of the relevant lay and medical evidence, including VA treatment records, the April 2012 and June 2012 VA examination reports, and lay statements, does not reveal that the Veteran has experienced total occupational and social impairment. The April 2012 VA examination report reflects that the Veteran reported having four close friends, and the July 2017 Board hearing transcript reflects the Veteran testified to exercising at a gym, demonstrating that the evidence of record does not show total social impairment. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the question of an extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the acquired psychiatric disorder issue on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record for any period on appeal. See Doucette v. Shulkin, 28 Vet. App. 366 (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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Finally, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice, 22 Vet. App. 447. An April 2015 rating decision granted TDIU; therefore, the issue of TDIU is not currently before the Board. ORDER For the entire rating period on appeal from January 11, 2011, a rating of 70 percent, but no higher, for an acquired psychiatric disorder is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs