Citation Nr: 0926541 Decision Date: 07/16/09 Archive Date: 07/22/09 DOCKET NO. 07-35 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an effective date prior to September 12, 2005 for the assignment of a 30 percent rating for a service connected adjustment disorder with mixed emotional features. ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1986 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. By a May 2006 Supplemental Statement of the Case, the RO increased the disability rating for a service connected adjustment disorder with mixed emotional features as secondary to a service connected back disability, from 10 percent to 30 percent, effective September 12, 2005; the date of referral to a mental health clinic for increased depressive symptoms. 2. With resolution of the doubt in favor of the Veteran, it is factually ascertainable that at the date of his claim on December 27, 2002, the Veteran's service connected adjustment disorder more closely approximated the criteria for a 30 percent rating. CONCLUSION OF LAW The criteria for an effective date of December 27, 2002 for a rating of 30 percent for a chronic adjustment disorder with mixed emotional features are met. 38 U.S.C.A. §§ 1155, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.1-4.15, 4.130, Diagnostic Code 9440 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Analysis The Veteran contends that the effective date of the RO's assignment of a 30 percent rating for service-connected adjustment disorder should have been made effective at the date of his claim on December 27, 2002. After resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's reports of his symptoms reflected that his adjustment disorder was of a severity to warrant a 30 percent rating at the date of his claim. An effective date of December 27, 2002 is granted. Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. The Veteran filed a service connection claim for depression as secondary to his back disability on December 27, 2002. In a November 2003 RO decision, the Veteran's depression was rated as 10 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9440 as a Chronic Adjustment Disorder. Chronic Adjustment Disorders are included in the VA's General Rating Formula for Mental Disorders (General Rating Formula). The General Rating Formula provides for a 10 percent rating when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent disability rating is assigned when there is 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. The symptoms and manifestations listed in the above General Rating Formula are not requirements for a particular rating, but are examples providing guidance as to the type and degree of severity of these symptoms. Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Generally, the effective date for an award of increased disability compensation based upon a claim for service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. See 38 U.S.C.A. § 5110(a). The corresponding VA regulation indicates that an increased disability rating shall be assigned as of the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In his service connection claim for depression, received on December 27, 2002, the Veteran stated that he experienced frequent sleep disturbances and received antidepressant medication. As a result of his back pain, he could not perform simple tasks of everyday living and experienced persistent insomnia. He also reported having depression and anxiety over his occupational and domestic physical limitations. There is also a letter by his wife detailing her observations of the Veteran's depressed mood, persistent insomnia, and physical limitations all due to back pain. The record shows that the Veteran started using an antidepressant in December 2002, but was not referred for mental health treatment for his psychiatric symptoms until September 12, 2005. Private medical records from 2001 through August 2005 reflect that the Veteran regularly sought medical treatment for continuing back and neck pain. Medical notes during this period showed that the Veteran experienced recurring insomnia. One medical note, dated September 2003, reflected that a mood disturbance was present. Notwithstanding these notations, the rest of the medical record during this period reflected recurring treatment for back pain, but did not reference psychiatric symptoms other than insomnia. The Veteran was afforded a VA examination in September 2003. He reported experiencing insomnia and feeling sad and irritable due to his chronic back pain. He continued to work full time and maintain good relationships with his family members. During the mental status examination, the physician found the Veteran to be alert and cooperative. The Veteran did not have anxiety, an irritable mood, psychosis or suicide ideation. His memory was good. The physician diagnosed a chronic adjustment disorder with mixed emotional features secondary to back pain. He assigned a Global Assessment of Functioning (GAF) score of 65 to reflect mild impairment. The Veteran filed a November 2003 notice of disagreement (NOD) with the assignment of a 10 percent rating for his chronic adjustment disorder. He emphasized that he experienced severe insomnia by having less than four hours of sleep per night. The Veteran also disputed the symptoms found in the September 2003 VA examination report. He asserted that he experienced a depressed mood and decreased appetite. Notably, the Veteran stated that he thought about suicide, but never formed an active plan. He also reported difficulty performing occupational tasks as a result of his depressive symptoms. In sum, he did not believe the September 2003 examination report accurately characterized his psychiatric symptoms. In September 2004, the Veteran requested a RO hearing to dispute the RO's assignment of a 10 percent rating for his adjustment disorder. The Veteran reported continued depression and anxiety over his inability to participate in activities with his wife and children. He experienced anxiety at work due to physical limitations imposed by his back disability. The Veteran also noted symptoms of memory loss, irritability, and persistent insomnia. He reported that these symptoms have severely affected his marriage. The first medical record of increased depression was noted on April 21, 2005. The Veteran reported increased depressive symptoms and insomnia, with sleep averaging two to three hours. The physician diagnosed worsening depression and considered changing the Veteran's anti-depressant medication. In September 2005, the Veteran began primary care treatment at VA and received a referral to the mental health clinic for his depressive symptoms. Additionally, private medical records at this time, specifically August 2005 and October 2005 notes, showed that "psychosocial factors" were interfering with the Veteran's physical functioning. The first clinical treatment specifically for mental health occurred on November 14, 2005 at a VA Mental Health Clinic. The Veteran reported depression, irritability, poor mood, and insomnia as secondary to his back disability. Although he had not received psychological treatment, he began taking an antidepressant in 2002 and noticed improvement. However, he discontinued it for financial reasons. The Veteran reported having suicidal thoughts in 2002 or 2003, but did not have an active intent or plan. The physician diagnosed major depressive disorder and adjusted the Veteran's medication. He also noted the Veteran to be "high-functioning" with a stable job and supportive family. In May 2006, the RO granted an increased rating of 30 percent, effective September 12, 2005, which was the date the Veteran was first referred for mental health treatment by a physician. The Veteran submitted a NOD with the effective date of the 30 percent rating. He again expressed concern over the September 2003 VA examination and contended that the examiner did not accurately describe his symptoms. The Veteran maintained that the reported symptoms in September 2003 and November 2005 were essentially the same. Since the symptoms were the same at both times, the Veteran argued the 30 percent rating should have an earlier effective date. It is the Board's fundamental responsibility to evaluate the probative value of all evidence. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (Holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). In brief, the 10 percent rating for chronic adjustment disorder contemplates mild psychiatric symptoms. 38 C.F.R. § 4.130, Diagnostic Code 9411. The 30 percent rating criteria for chronic adjustment disorder contemplates increased depressive symptoms that are more severe than the mild nature contemplated by the 10 percent rating criteria. 38 C.F.R. § 4.130, Diagnostic Code 9440. Medical records from 2003 and 2004 did not document mental health complaints, other than insomnia, and one notation of a mood disturbance. The September 2003 VA examination report reflected symptoms of occasional sadness and irritability. However, the record contains lay statements by the Veteran in November 2003, September 2004, and May 2006 detailing psychiatric symptoms of depression, anxiety, insomnia, and suicide ideation. The symptoms described in the lay statements would be characterized as more severe than the symptoms contemplated in the 10 percent rating criteria. See id. There is also a statement, received in December 2002, by the Veteran's wife recounting her observations of his depressed mood and insomnia. The Veteran is competent to report about his psychiatric symptoms and his wife is competent to report her observations of his symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002) (citing Caluza v. Brown, 7 Vet.App. 498, 504 (1995)); see also Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (lay evidence is competent to establish features or symptoms of injury or illness). Thus, the statements by the Veteran and his wife describing his depressive and insomnia symptoms of an increased severity are competent evidence. Id. The medical record did not document increased depressive symptoms until an April 21, 2005 private medical note. The Veteran complained that he "was not feeling well." He reported increased depression, insomnia, and fatigue. The physician diagnosed worsening depression. Prior to this time, the healthcare providers treating the Veteran's back disability only referred to symptoms of insomnia. However, in a mental health treatment note, dated November 2005, the Veteran described having past suicidal thoughts in 2002 or 2003. The Veteran's November 2003 NOD referenced these suicidal thoughts. The Board finds that the evidence is at least in equipoise as to whether the Veteran's psychiatric symptoms approximated the criteria for a 30 percent rating on the date of his service connection claim for depression. Medical records from 2002 to early 2005 contained several references to recurring insomnia and showed that the Veteran received an antidepressant prescription beginning in December 2002. The lay statements submitted in the initial claim described psychiatric symptoms of depression and insomnia that significantly interfered with domestic and occupational daily activities. The Board notes that the first medical record of an increase in depressive symptoms occurred in April 2005; the September 2003 VA examination report reflected mild psychiatric symptoms; and that the Veteran has maintained full time employment. Notwithstanding, the lay statements during 2002 to 2006 describing the Veteran's symptoms are competent evidence that the severity of his chronic adjustment disorder more closely approximated the criteria for a 30 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411; Charles, supra.; Layno, supra.; Mauerhan, supra. Since there is competent evidence that the disability more closely approximated the criteria for a 30 percent rating at the date of his service connection claim, an effective date of December 27, 2002 for a 30 percent rating for chronic adjustment disorder is granted. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable result for the Veteran, or be of assistance to this inquiry. ORDER An effective date of December 27, 2002, for the assignment of a 30 percent disability rating for a chronic adjustment disorder is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs