Citation Nr: 0334671 Decision Date: 12/11/03 Archive Date: 12/24/03 DOCKET NO. 02-17 688 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD M. Tenner, Associate Counsel INTRODUCTION The veteran served on active duty from May 1985 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision that granted service connection for anxiety disorder and assigned a 30 percent disability evaluation, effective September 26, 2001. The veteran filed a notice of disagreement in May 2002. The RO issued a statement of the case in August 2002. The RO received the veteran's substantive appeal in October 2002. As the veteran has perfected an appeal as to the initial rating assigned for the service-connected anxiety disorder, the Board has characterized this issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Since the September 2001 effective date of the grant of service connection, the veteran's anxiety disorder has been manifested, primarily, by episodic depression, anxiety, anger/irritability, and sleep impairment; these symptoms reflect no more than occupational and social impairment with occasional decrease in work efficiency. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003)). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the duties imposed by the VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim for a higher initial evaluation of service-connected anxiety disorder has been accomplished. Through the April 2002 rating decision, the August 2002 statement of the case, and the January 2003 supplemental statement of the case, the RO notified the veteran of the legal criteria governing the claim, the evidence that had been considered in connection with her appeal, and the bases for the assignment of a 30 percent initial disability evaluation. Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support her claim, and has been afforded ample opportunity to submit information and evidence. The Board also finds that a December 2001 letter of the RO satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA, has also been met. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In that letter, the RO notified the veteran of the information and evidence needed to establish the claim for service connection; and requested that the veteran provide information, and, if necessary, authorization, to enable it to attempt to obtain any outstanding medical evidence pertinent to the claim on appeal. The Board acknowledges that in the December 2001 letter, the RO requested that the veteran furnish information and/or evidence pertinent to the claim on appeal within 60 days, whereas the governing statute provides for a response period of one year. See 38 U.S.C.A. § 5103. In a recent decision, the United States Court of Appeals for the Federal Circuit invalidated the less than one year (30-day) response period contained in 38 C.F.R. § 3.159(b)(1), as inconsistent with 38 U.S.C. § 5103(b)(1). See Paralyzed Veterans of America (PVA) v. Secretary of Veterans Affairs (Secretary), No. 02-7007, - 7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003). However, the Board finds no violation of the notification provisions of 38 U.S.C.A. § 5103(b)(1) that would affect the outcome of the decision in this case. As the record clearly reflects, the veteran has undergone a VA examination, with necessary testing, in connection with this claim, and all VA and identified private mental health treatment records have been received and considered. As this evidence provides a sufficient basis upon which to evaluate the claim, VA's duty to assist has been met. See 38 U.S.C.A. § 5103A. Significantly, since the RO's December 2001 letter, more than a year has passed without the submission or identification of any pertinent medical evidence not of record, and neither the veteran nor his representative has indicated that there is any pertinent evidence outstanding that has not been obtained. In fact, in a January 2002 statements submitted by the veteran's representative and the veteran, the RO was requested to process the veteran's claim based upon the evidence then of record. Under these circumstances, the Board finds that there is no prejudice in going forward with a decision in the appeal, as any failure on VA's part in its duty to notify the veteran is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed.Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2003). II. Factual Background The veteran's service medical records show treatment for an adjustment disorder with depressed mood and personality disorder with dependant traits. She was recommended for early separation from the military. In September 2001, the veteran claimed entitlement to service connection for depression and a sleep disorder. She identified medical treatment from Shelby Medical Associates and the VA mental health clinic in Charlotte, North Carolina. Thereafter, the RO obtained the identified treatment records. Records from Shelby Medical Associates from May 1998 to August 2001 show treatment for anxiety and depression. In November 1999, she was seen with depression and homicidal ideation. She complained of stress between her and her supervisor. She turned over a handgun to her treatment provider and was reportedly relieved that help was available to her. A July 2000 treatment note indicated that the veteran had done exceedingly well with her depression and no longer had any homicidal or suicidal ideation. In August 2001, the veteran reported recurrent depression. She was on Zoloft with good results but stopped when she switched jobs and got a boyfriend. She denied any further homicidal or suicidal ideation but complained of anxiety. She was prescribed Zoloft. VA mental health treatment records show that the veteran was first seen in September 2001 with complaints of anxiety attacks. On her initial intake, she reported a history of anxiety, depression, difficulty concentrating, and difficulty controlling violent behavior. In November 2001, she complained of anxiety with tension in her neck, heart palpitations, shakiness, and irritability. She was also bothered by sleep difficulty. She denied any depressive symptoms of crying spells or feelings of sadness. Mental health treatment records through March 2002 show a continuing diagnosis of rule out anxiety disorder. In March 2002, the veteran underwent VA examination. She reported that she was anxious most of the time, could not relax and was especially aggravated by crowds. She reported episodic depression. She was not a good sleeper and complained of anger in the workplace and while driving. She denied any suicidal ideation. She was taking sertaline and BuSpar with a little benefit. She was employed full time, lived with her boyfriend, and was close with her family. On mental status examination, she was alert and cooperative. The examiner noted that there was no looseness of association or flight of ideas; no bizarre facial movements or tics; and no nightmares, flashbacks or intrusive thoughts. Additionally, there was no evidence of suicidal or homicidal ideation, delusions, hallucinations, ideas of reference, suspiciousness or memory loss. The examiner described her mood as a bit tense, but noted that she had appropriate affect, judgment and intellectual capacity. The examiner rendered an Axis I diagnosis of anxiety disorder, not otherwise specified and an Axis II diagnosis of personality disorder, not otherwise specified. The examiner noted some social impairment and difficulty in maintaining and establishing relationships, and assigned a Global Assessment of Functioning (GAF) scale score of 60. The examiner commented that such score represented moderate symptoms with social and occupational difficulties. VA mental health clinic records from March 2002 to October 2002 reflect continuing treatment. In March 2002, the vetean denied any depressive symptoms but reported stress regarding her employer and was worried that she would be forced to work on the weekends or that her employer's business would fail. The veteran was encouraged not to project into future. In April 2002, she reported that the business was doing well but expressed concern regarding her ability to pay bills. In June 2002, she reported that she continued to feel anxious and was a little down at times. The impression was generalized anxiety disorder. A July 2002 note reflects that the veteran had stopped worrying over the status of her employment and reported that her relationship with her significant other was going well. In August and September 2002, she was counseled regarding relationships with family members. In October 2002, she was seen in the medication clinic with complaints that Celexa made her "wired" and that she was not sleeping well at night. There were no signs of depression or psychosis. She was continued on BuSpar and a trial of cyproheptadine. III. Analysis Disability evaluations are determined by comparing symptomatology with rating criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, in the Fenderson decision, cited to above, the Court noted an important distinction between an appeal involving the veteran's disagreement with the initial rating assigned at the time a disability is service connected and those appeals involving a claimant's disagreement with a mere denial of a claim for an increased rating. Where entitlement to compensation already has 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). However, where, as here, the issue on appeal involves consideration of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. The veteran has been assigned an initial 30 percent rating for psychiatric impairment since the September 26, 2001 effective date of the grant of service connection. Although the rating has been assigned under Diagnostic Code 9413, pursuant to which anxiety disorder is evaluated, the veteran's psychiatric disability is rated under a general rating formula, set forth at 38 C.F.R. § 4.130. A 30 percent 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). See 38 C.F.R. § 4.130. A 50 percent rating is assigned when there is 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Since the September 26, 2001 effective date for the grant of service connection, the record shows that the veteran's anxiety disorder has been manifested, primarily, by episodic depression, anxiety, anger/irritability, and sleep impairment. Considering the evidence in light of the above referenced criteria, the Board finds that these symptoms are reflective of no more than occupational and social impairment with occasional decrease in work efficiency, for which a 30 percent evaluation is warranted. Clearly, the record shows continuing treatment for anxiety and stress associated with employment and social interaction. However, the record does not reflect that the criteria for at least the next higher, 50 percent, evaluation are met. There is no medical evidence establishing, at any point since the September 26, 2001 effective date of the grant of service connection, that the veteran has experienced at least occupational and social impairment with reduced reliability and flexibility due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once weekly, difficulty in understanding complex commands; impairment in short- and long-term memory; impaired judgment; or impaired abstract thinking. Earlier, the veteran displayed symptoms and behavior that can be characterized as homicidal ideation; however, the medical evidence also establish that by August 2001 (the month before the effective date of the grant of service connection), such symptoms had resolved. Moreover, while VA outpatient treatment records since November 2001 reflects treatment for anxiety and work-related and social stress, notwithstanding such symptoms of the veteran's anxiety disorder, the claims file also reflects that the veteran has been able to maintain full time employment, without restriction. In short, the Board finds that the symptoms shown demonstrate that the criteria for at least the next higher, 50 percent evaluation, simply are not met. This is so even when all of the veteran's psychiatric impairment, to include that possibly attributable to her nonservice-connected personality disorder, is considered. (Parenthetically, the Board notes that no examiner has specifically indicated whether it is possible to separate the symptoms and affects of service- connected from nonservice-connected psychiatric disability). See Mittleider v. West, 11 Vet. App. 181 (1998). It follows then, that on this record, the criteria for any evaluation in excess of 50 percent likewise are not met. The Board also points out that the GAF score assigned in this case is consistent with the initial 30 percent evaluation assigned. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." There is no question that the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The May 2002 examiner assigned a GAF of 60. Pursuant to the DSM-IV, GAF scores between 51 and 60 indicate 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). This definition is consistent with the symptoms the veteran has demonstrated in this case; hence, the assigned GAF likewise provides no basis for assignment of any higher evaluation. In light of the foregoing, the Board determines that there is no schedular basis for assignment of more than the initial 30 percent rating assigned for anxiety disorder. The Board also finds that 38 C.F.R. § 3.32 1(b)(1) (cited to in the August 2002 statement of the case) provides no basis for assignment of more than a 30 percent rating, at any point since the effective date of the grant of service connection, on an extra-schedular basis. In the absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the disability otherwise has rendered impractical the application of the regular schedular standards, the criteria for invoking the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96(1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board must conclude that the veteran's claim for an initial evaluation in excess of 30 percent for service-connected anxiety disorder must be denied. Inasmuch as the 30 percent assigned reflects the greatest degree of psychiatric impairment shown since the September 26, 2001 effective grant of service connection, there is no basis for assignment of any staged rating pursuant to Fenderson. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim for a higher initial evaluation, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial evaluation greater than 30 percent for anxiety disorder is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2