Citation Nr: 1808806 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-33 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for major depressive disorder with insomnia. 2. Entitlement to an evaluation in excess of 10 percent for residuals of spinal fusion L5/S1. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Kenneth Lavan, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from September to December 1997, and from October 2001 to October 2004. This matter comes before the Board of Veterans Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida, that denied an evaluation in excess of 50 percent for major depressive disorder with insomnia and an evaluation in excess of 10 percent for residuals of spinal fusion L5/S1. The Veteran filed a notice of disagreement dated in May 2011, and the RO issued a statement of the case dated in October 2013. The Veteran submitted his substantive appeal in November 2013. In this regard, the Board notes that the Veteran submitted an application for individual unemployability, received at the RO in June 2011. The RO addressed this claim in the October 2013 statement of the case and the Veteran appealed the claim in his substantive appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation). In the November 2013 substantive appeal, the Veteran requested an opportunity to testify at a videoconference hearing before a Veterans Law Judge. In January 2015, the Veteran withdrew the request. 38 C.F.R. § 20.704. In May 2017, August 2017, and October 2017, the Veteran's attorney requested extensions of time to submit additional evidence and argument. That evidence and argument was received in October 2017, along with a waiver of initial RO review. The issues of entitlement to an increased rating for service-connected lumbar spine and entitlement to individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT The Veteran's major depressive disorder with insomnia was manifested by symptoms which produced occupational and social impairment causing reduced reliability and productivity for the appeal period. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for major depressive disorder with insomnia have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 4.126, 4.130 Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. Neither the Veteran nor his attorney 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). II. Increased rating for major depressive disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities ("Rating Schedule"), found in 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Separate diagnostic codes identify the various disabilities and each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.10. As such, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In addition, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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. The Board notes that in analyzing this claim, the Secretary, and therefore the Board, has an obligation to provide the Veteran with the "benefit of the doubt" on questions material to this decisions, for which there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When evaluating a service-connected mental disorder, the VA will review the Veteran's medical history to determine how badly the disorder has disrupted his social and occupational functioning. Specifically, the VA must review the frequency, severity, and duration of the psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). While the extent of a Veteran's social impairment is considered, the rating cannot be assigned on these limitations alone. 38 C.F.R. § 4.126(b). The Veteran's service-connected major depressive disorder with insomnia is currently evaluated as 50 percent disabling under the General Rating Formula for Mental Disorders, codified at 38 C.F.R. § 4.130 ("General Rating Formula") Diagnostic Code 9434. Under Diagnostic Code 9434, 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is 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; intermittently illogical, obscure, or irrelevant speech; 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. A 100 percent evaluation is assignable where there is 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Evaluation under this formula is "symptom driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation ... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that the Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. In addition to evidence regarding the Veteran's symptomatology and its impact on his social and occupational functioning, a Global Assessment of Functioning ("GAF") score is another component considered to determine the entire disability picture for the Veteran. The GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994)). Higher GAF scores denote increased overall functioning of the individual. For example, a GAF score of 51 to 60 represents "[m]oderate 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)." DSM-IV at 46-47. While lower scores are indicative of greater symptoms and decreasing functionality of the individual. Specifically, a GAF score of 41 to 50 illustrates "[s]erious 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. While an examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, it 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. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95. The Veteran was afforded a VA examination dated in June 2010 in connection with his claim. The Veteran's claims file was reviewed in connection with the examination and report. On examination, the Veteran was clean and neatly groomed. The Veteran's affect was appropriate, and he was oriented times three. The Veteran had unremarkable thought process, though he was preoccupied with one or two topics. He denied delusions, hallucinations, inappropriate or ritualistic behavior, panic attacks, homicidal or suicidal thoughts, episodes of violence, or memory problems. The Veteran was of average intelligence and had good impulse control. The Veteran reported daily depression, although he indicated that most days were good and one to two days per month he had minimal to no depression. He reported difficulty falling asleep 2-3 times a week, and had feelings of hopelessness and worthlessness at times. The Veteran had past cocaine and alcohol use but the Veteran denied current use. He was never married and had good relationships with his siblings and parents. He lived with his brother and had several friends with whom he sees or speaks with occasionally. The Veteran did not seek treatment for his condition. He was currently out of work, although he was looking and planning to take the LSAT to try for law school in the fall. He also wrote scripts and plays and read. After examination, the Veteran was diagnosed with major depressive disorder and assigned a GAF score of 55. February and March 2011 VA treatment reports indicated that the Veteran began to seek treatment for long-standing depression. The Veteran was noted to be single, never married, unemployed, and living with his parents. The Veteran was noted to have one past suicide attempt and difficulty sleeping. In February 2011, the Veteran was described as obese, calm, unkempt, and cooperative. He made appropriate eye contact and his cognitive function was grossly intact. His speech was clear and coherent, his thought processes was organized and goal-oriented. He denied hallucinations and having thoughts of self harm or harming others. In March 2011, he indicated that he first saw a psychiatrist in the military when he had a suicide attempt overdosing on sleep medications, but since that time he had only had one follow up in 2005 and no further attempts. He denied current suicidal ideations, intent, or plan. He was described as obese, well groomed with good hygiene, calm and cooperative. The Veteran was diagnosed with major depressive disorder, recurrent, mild. He was assigned a GAF score of 50. The Veteran was afforded a VA examination in June 2011. The Veteran's claims file was reviewed in connection with the examination and report. The Veteran was being treated with anti-depressants and the examiner indicated that the depression had improved slightly, although sleep was still poor. The Veteran reported that his depression was 7/10 most days and he had feelings of hopelessness and worthlessness at times. Upon examination, the Veteran was clean, neatly groomed, casually dressed, and obese. The examiner found that the Veteran's affect was appropriate, and he was oriented times three. The Veteran had unremarkable thought process. There were no delusions, hallucinations, inappropriate or ritualistic behavior, panic attacks, homicidal or suicidal thoughts, episodes of violence, or memory problems. The Veteran was of average intelligence and had good impulse control. The Veteran was living with his parents and also had a few friends. He was unemployed mostly due to back pain. After examination, the Veteran was diagnosed with major depressive disorder and was assigned a GAF score of 52 for his depression. The depression was not severe enough to cause the Veteran to be unable to perform work, although there were periods of reduced concentration and fatigue that caused occasional difficulty at school. The Veteran was afforded an additional VA examination dated in September 2011. The Veteran was diagnosed with moderate depressive disorder. He was assigned a GAF score of 58 for depression. The Veteran was noted to have depressed mood most days rated at 7/10, not anhedonic, but with periods of amotivation and periods of hopelessness and worthlessness and overeating, and periods of reduced concentration. The examiner found that the level of the Veteran condition was occupational and social impairment with reduced reliability and productivity. The Veteran was never married, and had no children. He lived with his parents and brother and had good rapport with a sister. The Veteran also had a few friends that he had contact with over Facebook. The Veteran's symptoms were indicated to be depressed mood, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work or a work like setting. Finally, the Veteran submitted the report of a private psychologist dated in August 2017, who indicated that she had reviewed and analyzed the Veteran's claims file. The report appears to be a review of the evidence in the Veteran's claims file, but it does not appear that the Veteran was evaluated by this psychologist. The psychologist set out the Veteran's medical history and a summary of the Veteran's VA examinations in the report. The psychologist opined that the Veteran suffered depression at the 70 percent level since April 8, 2010, finding that the Veteran had occupational and social impairment with deficiencies in most areas. In this regard, the psychologist noted that the Veteran reported that, since 2010, he had had psychological turmoil on a daily basis, isolation, panic attacks every day, difficulty with social relationships, temper and anger problems, frequent suicidal ideation, and self-medication with alcohol and drugs. After considering the record in its entirety, the Board finds that an evaluation in excess of 50 percent for the appeal period is not warranted. The Veteran has been afforded multiple examinations and his symptoms were indicated to be primarily mild or moderate in nature with GAF scores ranging from 50 to 58. The September 2011 examiner also specifically found that the level of the Veteran's disability was occupational and social impairment with reduced reliability and productivity, which corresponds to a 50 percent evaluation. In this regard, the Board notes that the August 2017 psychologist opined that the Veteran's level of disability warranted a 70 percent evaluation for the appeal period. In the report, the psychologist noted that the predominant GAF scores were primarily in the moderate range and the findings of the examiners and treating physicians regarding the Veteran's symptoms were mild to moderate in nature. After setting forth the evidence, however, the psychologist emphasized the report of the Veteran that, since 2010, he had had psychological turmoil on a daily basis, panic attacks every day, difficulty with social relationships, isolation, temper and anger problems, frequent suicidal ideation, and self-medication with alcohol and drugs. Based on a review of the contemporaneous clinical evidence during the appeal period, the Board finds that the August 2017 opinion is entitled to less probative weight. In this regard, the Board notes that the record shows in-service suicide attempts as well as alcohol and drug use. The contemporaneous clinical evidence during the appeal period, however, does not show daily psychiatric turmoil, panic attacks, anger issues, or frequent suicidal ideation, as set forth in the various VA examination and treatment reports set out above. For example, in clinical settings, the Veteran consistently denied suicidal thoughts or attempts and panic attacks. At June 2010, June 2011, and September 2011 examinations, panic attacks were specifically noted to be denied or absent. The Board has considered the Veteran's recent contentions to the effect that he has suicidal ideations at least a couple of times per month. He indicates that when this happens, he uses exercises to get past the thought. Under these circumstances, the Board Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court suggested that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. The December 2012 VA examiner noted suicidal ideation. However, in subsequent VA medical records, the appellant specifically denied such symptom. During the June 2015 VA examination, the appellant acknowledged suicidal thoughts but denied intention or plans. The examiner determined that the Veteran was not an imminent threat to harm himself. [*29] Moreover, even considering such symptom, there was no finding that the overall disability picture caused occupational and social impairment with deficiencies in most areas. Socially, the Veteran reported that he had been married to his second wife for 4 years and reported having a good marriage and social support system. His hobbies consisted of fishing. Although the Veteran denied engaging in any social activities, he reported attending family events. In view of the record in its entirety, the Board finds that these symptoms do not indicate a disability picture commensurate with the next-higher 70 percent rating. In addition, the record shows that the Veteran's service-connected psychiatric disability does not produce obsessional rituals or impaired speech. Rather, his speech has been consistently normal. In addition, although he reported depression, it did not affect his ability to function independently, appropriately and effectively. Indeed, the Veteran was consistently noted to be independent in his activities of daily living. He consistently denied impaired impulse control and, but for one notation of being unkempt, he has been consistently described as well groomed with good hygiene. Although he reports that he had difficulty working in a restaurant as the customers stressed him out, he is not shown to be unable to adapt to stressful circumstances. In addition, the Veteran was noted to have good rapport with his parents and siblings and had friends that he communicated with on Facebook. He was also noted to be well-groomed, cooperative, oriented, coherent, and cooperative during his examinations. As such, the preponderance of the evidence does not indicate that the Veteran manifested psychiatric symptoms that caused occupational and social impairment, with deficiencies in most areas, warranting a higher evaluation. In sum, after a review of the claims file, the Board finds that the preponderance of the evidence during the appeal period more closely approximates the criteria for a 50 percent evaluation. As such, a higher evaluation for service-connected major depressive disorder with insomnia is not warranted in this case. ORDER An evaluation in excess of 50 percent for service-connected major depressive disorder with insomnia is denied. REMAND In an October 2017 Brief Presentation, the Veteran's representative noted that the most recent VA examination for the Veteran's lumbar spine was conducted in June 2011, over 6 years ago. The Veteran and his representative in the Brief Presentation and also in an October 2017 statement submitted by the Veteran, contend that the Veteran's lumbar spine disability has worsened since that time. The Veteran's representative has requested that the Veteran be scheduled for a VA examination in order to determine the current severity of his condition. As such, the Board finds that the Veteran should be afforded a contemporaneous VA examination in order to determine the current level of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Veteran has also claimed entitlement to individual unemployability based on his service-connected disabilities. However, because the determination with respect to the lumbar spine claim may potentially impact the issue of individual unemployability, the Veteran's individual unemployability claim is inextricably intertwined with this claim and should be remanded pending their disposition. See Harris v. Derwinski, Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" on another, and that impact in turn "could render any review by this Court of the decision [on the other claim] meaningless and a waste of judicial resources," the two claims are inextricably intertwined); see also Gurley v. Nicholson, 20 Vet. App. 573, 575 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the current severity of his service-connected lumbar spine disability. The claims folder must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all appropriate protocols for rating spine disabilities. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. To the extent possible, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. All indicated studies, including range of motion studies in degrees, should be performed. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also provide an opinion concerning the impact of the disability on the Veteran's ability to work. The supporting rationale for all opinions expressed must be provided. 2. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs