Citation Nr: 1505966 Decision Date: 02/09/15 Archive Date: 02/18/15 DOCKET NO. 12-27 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased rating for mood disorder NOS, currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2003 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2013 travel board hearing, the Veteran and his representative appeared before a Veterans Law Judge to present evidence and oral testimony in support of his claim for an increased rating. Unfortunately, due to a technical malfunction in the audio recording system that occurred during the hearing, a transcript of this hearing could not be obtained. In March 2014, the Board remanded the claim to schedule him for an additional hearing. In June 2014, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The Veteran's service-connected mood disorder with Asperger's syndrome causes occupational and social impairment that more nearly approximates total. CONCLUSION OF LAW The criteria for a 100 percent disability rating for mood disorder with Asperger's syndrome have been met beginning August 20, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In light of the Board's favorable decision to grant a 100 percent rating, no discussion of the VA's duty to notify and assist is necessary. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2014); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2014); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2014); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2014). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the 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). The Veteran's chronic mood disorder has been evaluated using the general rating formula for mental disorders outlined in 38 C.F.R. § 4.130, Diagnostic Code 9440. Under Diagnostic Code 9440, 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: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9440 (2014). 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/or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted 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/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. Id. 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 (2014). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is based on a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. The assigned GAF score does not determine the disability rating VA assigns, but it is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). In a June 2007 rating decision, the RO granted service connection for adjustment disorder with mixed emotional features including anxiety and depression, and assigned a 10 percent rating effective April 18, 2005, the day following the Veteran's discharge from service. The grant was based on the RO's finding that the Veteran's service treatment records showed he was treated for depression in service. In December 2007, the Veteran filed a claim for an increased rating. The Veteran included an October 2007 VA note in which a social worker noted that the Veteran had Asperger's syndrome. The Veteran underwent a VA examination in January 2008 (conducted by M.T.). In a February 2008 rating decision, the RO increased the Veteran's disability rating to 30 percent. In July 2008, the Veteran filed a claim for an increased rating. In a January 2009 rating decision, the RO continued the 30 percent rating. In July 2009, the Veteran filed a claim for reconsideration of the prior rating decision. The Veteran included a notice of decision from SSA that awarded him disability benefits. The Veteran underwent a VA examination in January 2010 (conducted by M.T.). In a March 2010 rating decision, the RO continued the 30 percent rating. On August 20, 2010, the Veteran filed a claim for an increased rating. In an April 2011 rating decision, the RO continued the 30 percent rating because the Veteran failed to report to a scheduled VA examination. In July 2011, the Veteran filed a claim for an increased rating. The Veteran underwent a QTC examination in August 2011 in which the examiner found that the Veteran's psychiatric symptoms caused total occupational and social impairment. In a November 2011 rating decision, the RO recharacterized the service connected disability as a mood disorder and continued the 30 percent rating. The RO noted that the evaluation was based on the Veteran's mood disorder (depressed mood and anxiety) and maintained that the additional symptoms of memory impairment, communication problems, and difficulty understanding commands were associated with his nonservice connected Asperger's Disorder. In December 2011, the Veteran filed a notice of disagreement. A statement of the case was issued in September 2012 in which the 30 percent evaluation was continued. The Veteran perfected an appeal of his claim by filing VA Form 9 in October 2012. First, the Board recognizes that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (2014). The Board finds that the August 2011 QTC examination report constitutes new and material evidence that was received prior to the expiration of the appeal period and so will be considered as having been filed in connection with the August 20, 2010 claim that was pending at the beginning of the appeal period. Second, the U.S. Court of Appeals for Veterans Claims (Court) has noted that a VA General Counsel opinion on the subject of congenital disorders distinguishes two classes of disabilities on the basis that "a defect differs from a disease in that the former is 'more or less stationary in nature' while the latter is 'capable of improving or deteriorating.'" Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). Further, each has separate legal requirements for service connection. For congenital defects, service connection may be warranted only for superimposed injuries or diseases related to service; for congenital diseases on the other hand, the presumption of soundness is for application and service connection may be warranted for preexisting disorders that were incurred (i.e., initially manifesting in service) or aggravated (i.e., manifesting prior to service but accelerates beyond the normal progression in service) by service. Also, a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). However, "a congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect. A progressive congenital or developmental condition does not become a defect simply because it ceases to progress." Id. The record reflects that service connection was granted on the basis of recognition that a psychiatric disorder was not noted upon the Veteran's entrance into service and that a psychiatric disorder presented itself in service. Service treatment records show that the Veteran presented with a complicated psychiatric picture with depression and suicidal ideations and at one point, Autism or Asperger's Syndrome was suspected but not definitively diagnosed. Rather, a definitive diagnosis of Asperger's Syndrome did not occur until after the Veteran's discharge from service. Indeed, despite having examined the Veteran in November 2006 and January 2008, it was not until the January 2010 examination that the VA examiner recognized an Axis I diagnosis of Asperger's Syndrome. Until that time, the Veteran's spectrum of symptoms were attributed to an Axis I diagnosis of adjustment disorder with mixed emotional features including anxiety and depression in 2006, and Axis I diagnosis of adjustment disorder with mixed emotional features in 2008. The bases for the award of service connection and assignment of 10 percent and 30 percent disability ratings were the November 2006 and January 2008 VA examination findings. VA regulations provide that the repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. 38 C.F.R. § 4.13 (2014). The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted. Id. The Board finds that the Veteran's full spectrum of occupational and social impairment is service connected. The fact that many years later after numerous psychiatric evaluations the Veteran's psychiatric symptoms can now be delineated between a mood disorder and Asperger's Syndrome does not negate the fact that the original service connected disability was a spectrum of symptoms attributed to adjustment disorder with mixed emotional features including anxiety and depression. Thus, the Board's assignment of a disability rating is based on the impact of all the Veteran's symptoms on his occupational and social functioning. The medical evidence of record includes an August 2010 VA treatment record that showed that the Veteran continued to receive psychotherapy treatment after relocating to Oklahoma City. The Veteran reported that he had been dating his girlfriend for a few years and that they moved to San Antonio and eventually to Oklahoma City. The Veteran was enrolled in a community college and was eligible for the GI bill. The Veteran appeared groomed, and his speech was at a normal rate. He reported that his mood was "OK" and he denied experiencing any hallucinations or delusions. An August 2011 VA examination report notes that the Veteran's complaints of depression had worsened over the past several years and that he was socially withdrawn and dejected due to chronic self-defeating behaviors. The Veteran was currently not working and had not worked for the past 18 months. The Veteran reported that he had been unable to find work due to his Asperger's syndrome. The examiner found that the Veteran was a reliable historian. A mental status examination revealed that his appearance, hygiene, and behavior were appropriate. He had poor eye contact and his affect and mood showed impaired impulse control. The examiner stated that the impaired impulse control affected his motivation and mood by interacting reciprocally with his dysphoric mood states such as irritation and frustration. The examiner noted that the Veteran's communication was grossly impaired and intermittently loud, and he had pressured speech. The Veteran also showed impaired attention and focus, and could not count forward or backwards by 3's without mistake. The examiner found no panic attacks, suspiciousness, delusions, hallucinations, or obsessive-compulsive behavior present. The examiner found the Veteran's thought process was appropriate. However, the examiner found the Veteran's judgment was impaired and he reported getting easily confused and frustrated while communicating with others. The Veteran's abstract thinking was abnormal and his memory was impaired to a moderate degree. The examiner assigned a GAF score of 55. The examiner opined that the Veteran was unable to establish and maintain effective work, school, and social relationships because of his behavior. The examiner maintained that the best description of the Veteran's current psychiatric symptoms was total occupational and social impairment. In a September 2011 VA opinion report, the psychologist clarified that the Veteran had a difficult childhood and claimed that the Veteran was diagnosed with Asperger's syndrome prior to joining the Navy. Consequently, he had severe problems coping with the occupational and social demands of the military which resulted in his development of depression and suicidality for which he was hospitalized and discharged from service. The examiner opined that it was at least as likely as not that the Veteran's current depression and anxiety were a continuation of the depression and anxiety developed in service because they have persisted since their onset when he was hospitalized. While the condition was secondary to Asperger's syndrome, it was not a "progression" because they were not symptoms of the disorder. A June 2012 VA opinion report further clarified that the Veteran's mood disorder and Asperger's syndrome could be delineated. The examiner reported that the claims file was reviewed. The examiner opined that the mood disorder symptoms include depression, anxiety, insomnia, weight gain, and feelings of despair, while the Asperger's syndrome symptoms were evidenced by interpersonal problems, poor judgment, and difficulty processing social information. At the June 2014 Board hearing, the Veteran reported that he tended to stay away from everybody and he had a hard time trusting people. The Veteran reported that he had only one thought of suicide when he was admitted to the psychiatric unit around Thanksgiving in 2013, which was clarified as inpatient treatment in November 2013 from the Oklahoma City VAMC. The Veteran reported having daily panic attacks. The Veteran also reported that the panic attacks have made his job difficult and that he had not worked since December when he served as a volunteer. With regards to full-time employment, the Veteran reported that the longest job he had ever had was for seven months in 2006. As discussed above, the Board's assignment of a disability rating is to be based on the impact of all the Veteran's symptoms on his occupational and social functioning. The August 2011 examiner maintained that the best description of the Veteran's current psychiatric symptoms was total occupational and social impairment. The examiner's opinion is supported by the medical findings contained in the examination report and the medical treatment records. Thus, it is factually ascertainable that the Veteran's psychiatric symptoms warranted a 100 percent disability rating in August 2011. The Board recognizes that the Veteran's claim for an increased rating was filed on August 20, 2010. The Board resolves reasonable doubt in favor of the Veteran and assigns the 100 disability rating effective from August 20, 2010. 38 U.S.C.A. § 5107(b) (West 2014; 38 C.F.R. § 3.102 (2014). ORDER Entitlement to an increased rating of 100 percent for mood disorder NOS with Asperger's syndrome effective August 20, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs