Citation Nr: 1808985 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 07-23 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating (or evaluation) in excess of 70 percent prior to November 5, 2010 for the service-connected acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depression. 2. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for service-connected seborrheic dermatitis. ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1981 to April 1981 and from February 2003 to February 2004. He also had periods of active duty for training and/or inactive duty training in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2006 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In August 2013, the Board remanded the issue of a higher initial disability rating for seborrheic dermatitis to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In July 2014, the Veteran revoked the representation of his appeal by attorney Jonathan Bruce. Attorney Jonathan Bruce was notified that the Veteran revoked his representation in a November 2014 correspondence. As such, the Veteran is not represented in this appeal. The Board notes that the RO has categorized the appeal as one of an effective date earlier than November 5, 2010 for an increased disability rating of 100 percent for PTSD. Historically, entitlement to service connection for PTSD was granted in a February 2011 rating decision. In implementing the August 2013 Board decision that granted service connection for major depression, in a November 2013 rating decision, the RO increased the disability rating for an acquired psychiatric disability, to include PTSD and major depression, to 70 percent, effective April 6, 2006, the date of claim. In March 2014, the RO increased the disability rating for an acquired psychiatric disability to 100 percent, effective November 5, 2010. In a June 2014 Notice of Disagreement, the Veteran clearly disagreed with the November 2013 rating decision (awarding a 70 percent rating, effective April 6, 2006) and contended that the disability rating should be higher than 70 percent (i.e., 100 percent), effective April 6, 2006. Here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time in order to adjudicate initial rating claims. Further, because all the "questions" that would pertain to an earlier effective date issue (when the service connection claim was received by VA) are being decided by the Board's finding that the initial rating period with respect to the acquired psychiatric disability on appeal stems from the April 6, 2006 date of claim, the Veteran is not prejudiced by the Board treating this issue as a higher initial disability rating. As such, all the questions that could be characterized as "effective date" questions are fully addressed as part of the initial rating issue (an acquired psychiatric disability) on appeal. Also, in this regard, the appeal of the initial disability rating for the service-connected acquired psychiatric disability will not include the period from November 5, 2010, forward, because the Veteran is already in receipt of a 100 percent rating for that period. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran will generally be presumed to be seeking the highest rating available, and it follows that a partial grant of a higher rating does not terminate an appeal). The Board acknowledges that the RO issued a Statement of the Case in June 2014 as to the issue of an effective date earlier than November 5, 2010 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Subsequent to a June 2014 Statement of the Case, the Veteran submitted a statement (Substantive Appeal) in lieu of a VA Form 9 in July 2014. However, as explicitly explained in the August 2013 Board decision, in an October 2011 rating decision, the RO granted entitlement to a TDIU, effective November 5, 2010. The Veteran was notified of this decision by letter, dated October 18, 2011. The Veteran's representative, at that time, submitted a statement, dated October 17, 2012, wherein the attorney representative expressed disagreement with the effective date of the TDIU award. However, this statement is date-stamped as received at the AMC on December 4, 2012, and received at the Board on December 7, 2012. As such, in the August 2013 decision, the Board did not take jurisdiction over the issue of an earlier effective date for the grant of a TDIU. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (indicating that a notice of disagreement is a jurisdiction-conferring document that required remand rather than referral); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"); Marsh v. West, 11 Vet. App. 468, 470 (1998) ("an untimely NOD deprives [BVA] of jurisdiction"); see also Percy v. Shinseki, 23 Vet. App 37 (2009) (noting that, while Congress used "permissive language" in the statute for filing a substantive appeal, the language used by Congress in enacting the statute for filing a notice of disagreement was "mandatory," indicating a clear intention to foreclose the Board's exercise of jurisdiction over a matter where a notice of disagreement had not been filed). While the June 2014 Statement of the Case listed the issue of an earlier effective date for the grant of a TDIU, it did so without jurisdictional authority. In Percy, 23 Vet. App. at 38, the appellant had filed a timely notice of disagreement but failed to file a substantive appeal as to all of the issues on appeal. As the United States Court of Appeals for Veterans Claims (Court) found the filing of a substantive appeal was permissive, the filing of the mandatory notice of disagreement allowed the Board to assume jurisdiction of the issues not included in the original substantive appeal. Id. at 46-47. The instant matter is distinguishable from Percy in that the Board, as discussed above, has found there is no jurisdiction-conferring notice of disagreement. The Board is not permitted to waive the jurisdictional-conferring notice of disagreement requirement. See Manlincon, 12 Vet. App. at 240. As such, while the June 2014 Statement of the Case erroneously listed the issue of an earlier effective date for the grant of a TDIU, the Board finds that this issue is not properly in appellate status. To the extent that the issue of whether a timely notice of disagreement was received with regard to an effective date earlier than November 5, 2010 for the grant of a TDIU has been raised by the record, it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of a higher initial rating for seborrheic dermatitis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT For the entire initial rating period on appeal from April 6, 2006 to November 5, 2010, an acquired psychiatric disability, to include PTSD and major depression, has not more nearly approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for an acquired psychiatric disability, to include PTSD and major depression, are not met or approximated for any period on appeal prior to November 5, 2010. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 4.1-4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran has not 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 duty to assist argument). Initial Rating for an Acquired Psychiatric Disability Disability evaluations (ratings) 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 the 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 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, the Board will evaluate the issue as an appeal for a higher evaluation of the original award. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Id. The Board has thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as to the issues on appeal. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. For the entire initial rating period on appeal (from April 6, 2006 to November 5, 2010), an acquired psychiatric disability, to include PTSD and major depression, has been rated at 70 percent under the criteria at 38 C.F.R. § 4.130, Diagnostic Code 9411. In pertinent part, under the General Rating Formula for Mental Disorders, a 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Functioning (GAF) scale reflects 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 the Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994)). GAF scores ranging 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, has 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). GAF 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. With regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. The use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list and are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit determined 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." Thus, the demonstrated symptomatology is the primary focus when deciding entitlement to a given disability rating and a veteran may be entitled to a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the acquired psychiatric disorder disability picture more closely approximates total occupational and social impairment so that the criteria for a rating of 100 percent rating under Diagnostic Code 9411 are met for any period prior to November 5, 2010. In a July 2006 VA examination report, the Veteran was clean but unshaven, alert, and fully oriented. His attention, concentration, memory, insight, and judgment were fair. His speech was clear and coherent, and he was not hallucinating. There was no impairment of his thought process or communication. The Veteran also complained of poor sleep. The VA examiner indicated that the reported psychiatric symptoms described a mild impairment of the Veteran's social and occupational functioning and capacities. He was assigned a GAF score of 65, suggesting mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. The Veteran underwent another VA examination in May 2008. At that time, there was no impairment of thought process or communication. The Veteran reported having both auditory and visual hallucinations, and he indicated that he had suicidal ideas in the past but no attempts. The Veteran indicated that he needs coaching from his wife to take a bath; however, the VA examiner noted that the Veteran has no mental impairment for performance of basic daily activities and care of personal hygiene. The Veteran was fully oriented and the VA examiner indicated that the Veteran is not described as having significant memory impairment in the notes of outpatient treatment. The VA examiner assigned a GAF score of 50-55, suggesting at worst, serious symptoms or serious impairment in social, occupational or school functioning. The Board has also reviewed the Veteran's voluminous VA treatment records and private records prior to November 5, 2010. While these records reflect that the Veteran had intermittent periods of suicidal ideation, intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene, and rarely left his house to avoid crowds, the preponderance of the evidence does not reveal that the Veteran had total social impairment. As mentioned above, total occupational and social impairment is required for a disability rating of 100 percent under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Importantly, an October 2010 VA treatment record indicated that the Veteran was married for the last nine months with his consensual partner since 2002. Indeed, a certification of marriage reflects that the Veteran was married in January 2010. Furthermore, the Veteran's wife is referenced throughout VA and private treatment records within the appeal period from April 6, 2006 to November 5, 2010. The criteria for a disability rating of 100 percent have not been met or more nearly approximated for any period on appeal from April 6, 2006 to November 5, 2010. The preponderance of the evidence during the appeal period from April 6, 2006 to November 5, 2010 does not show that the Veteran experienced total occupational and social impairment. While the evidence does show persistent delusions or hallucination and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, the preponderance of the evidence does not reveal symptoms of gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. In short, the Board does not find evidence that the initial rating assigned for the acquired psychiatric disability, to include PTSD and major depression, should be higher for any other separate period based on the facts found during the appeal period from April 6, 2006 to November 5, 2010. The evidence of record supports the conclusion that the Veteran is not entitled to additional compensation in excess of 70 percent during any time within the period on appeal prior to November 5, 2010. See Fenderson, 12 Vet. App. at 126. For these reasons, the Board finds that a preponderance of the evidence is against an initial rating in excess of 70 percent for an acquired psychiatric disability, to include PTSD and major depression, for any period from April 6, 2006 to November 5, 2010. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. 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). ORDER An initial disability rating in excess of 70 percent prior to November 5, 2010 for the service-connected acquired psychiatric disability, to include PTSD and major depression, is denied. REMAND Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of a higher initial rating for seborrheic dermatitis. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A(a) (West 2012); 38 C.F.R. § 3.159(c), (d) (2017). Pursuant to the August 2013 Board Remand, the Veteran was afforded another VA skin examination in April 2014. However, while the VA examiner noted that there were scaly patches on the lateral neck, periauricular area, and scalp, the VA examiner did not measure the affected areas to determine whether the abnormal texture (scaly skin) exceeded six square inches (39 square centimeters). In addition, while the VA examiner also indicated that the lateral neck, periauricular area, and scalp were erythematous, the VA examiner did not indicate whether there was hypo or hyperpigmentation of the skin. Indeed, as mentioned in the August 2013 Board Remand, in the October 2010 VA skin examination, the examiner noted that the Veteran's skin disorder was located on the upper back and there were hyperpigmented plaques. As such, the record remains unclear as to whether the Veteran has two characteristics of disfigurement (hyperpigmentation and/or abnormal texture), warranting a higher 30 percent disability rating. See 38 C.F.R. § 4.118. Given the above, the Board finds that another VA examination is necessary to assist in determining the nature and severity of the seborrheic dermatitis. Accordingly, the issue of a higher initial rating for seborrheic dermatitis is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination in order to determine the severity of the service-connected seborrheic dermatitis. If such examination cannot be conducted during a period of flare up of the seborrheic dermatitis, the examiner should record a detailed clinical history referable to the manifestations. The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. Any indicated testing should be performed. Specifically, if hypo or hyperpigmentation, and/or abnormal texture (e.g. scaly) of the skin is found on examination, the VA examiner must measure the area of the hypo or hyperpigmentation, or abnormal texture in terms of inches or centimeters (i.e., determine whether the hypo or hyperpigmentation, and/or abnormal texture of the skin exceeds an area of six square inches or 39 square centimeters). 2. After completion of the above and any additional development deemed necessary, readjudicate the issue of a higher initial rating for seborrheic dermatitis. If the determination remains adverse to the Veteran, he and the representative, if any, should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (West 2012). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs