Citation Nr: 1220867 Decision Date: 06/14/12 Archive Date: 06/22/12 DOCKET NO. 10-47 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for panic disorder prior to March 1, 2011. 2. Entitlement to a rating in excess of 50 percent for panic disorder from March 1, 2011. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO, in pertinent part, granted service connection and assigned an initial 10 percent rating for panic disorder, effective September 20, 2009. In April 2011, the Veteran testified during a Board videoconference hearing before a Veterans Law Judge; a transcript of that hearing is of record. In June 2011, the Board remanded the issue to the RO, via the Appeals Management Center (AMC), for additional development. In an August 2011 rating decision, the AMC granted a higher, 50 percent rating for panic disorder, effective March 1, 2011. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating for panic disorder remains in appellate status. Additionally, because this award was made effective only from March 1, 2011, this issue on appeal has been recharacterized as noted on the first page. FINDINGS OF FACT 1. Prior to March 1, 2011, panic disorder was productive of no more than 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. 2. Since March 1, 2011, panic disorder has been productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to March 1, 2011, the criteria for an initial rating in excess of 10 percent for the Veteran's panic disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9412 (2011). 2. From March 1, 2011, the criteria for a rating in excess of 50 percent for the Veteran's panic disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9412 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The claim for a higher rating for panic disorder arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service VA treatment records. The Veteran was afforded VA examinations for panic disorder in March 2010 and August 2011. For the reasons discussed below, the evidence is adequate to make a determination on the claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims are thus ready to be considered on the merits. Legal Criteria Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2011). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Here, the evaluation of the Veteran's panic disorder has been staged. A 50 percent rating has been assigned from March 1, 2011, and a 10 percent rating has been assigned prior to that date. The Board finds that the Veteran's panic disorder has not significantly changed within those time periods and that further staged ratings are not appropriate. However, as identified by the RO, there was a significant change in the condition and a staged rating was warranted. The Veteran's panic disorder is evaluated pursuant 38 C.F.R. § 4.130, Diagnostic Code 9412, and is subject to the criteria listed under the General Rating Formula for Mental Disorders. The Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C.A. § 1155; see 38 U.S.C.A. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). The General Rating Formula provides a 10 percent evaluation for 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. 38 C.F.R. § 4.130 (2011). The rating formula provides a 30 percent evaluation 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, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted where 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 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); inability to establish and maintain effective relationships. A 100 percent evaluation is indicated 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 of others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. In assessing the evidence of record, it is important to note that the global assessment of functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DSM-IV at 32). A score of 31 to 40 is assigned where there is "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). Id. A score of 41-50 is assigned where there are, "Serious 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. A score of 51-60 is assigned where there are 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, conflict with peers or co- workers). Id. A score of 61-70 is indicated where there are "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." Id. Analysis In this case, the Veteran asserts that she is entitled to a higher disability rating for panic disorder. As noted above, her panic disorder is currently evaluated as 50 percent disabling from March 1, 2011, and as 10 percent disabling prior to that date. A February 2009 VA outpatient treatment record reflects that the Veteran complained of difficulty falling asleep and being more "emotional." She said she used sleep aids about once a month. It was noted that her husband was getting laid off that week. She said she had been treated with Paxil for panic attacks in the past, but that it was too strong. She said that had some improvement with Effexor (venlafaxine), but had weaned herself off this medicine three months ago. The assessment was insomnia with situational depression/anxiety and she was restarted on Effexor. In December 2009, she complained of weight gain, depression, insomnia, and decreased libido. The physician discussed the possibility of changing medications, but later it was noted that Effexor would not cause weight gain. The report of the March 2010 VA examination reflects that the Veteran said she had panic attacks about once every five to six months, but that she had not had any in the past year. She said the attacks had been better with medication. She said the attacks involved tightness in her chest and trouble breathing, but she could calm herself down without passing out. She said the attacks would last for three to four minutes. She said that she felt anxious at other times, about five days per month lasting between two hours to a whole day. On those days, she said she tended to isolate herself more and avoid people. She said she worked in an office, answering phones and filing. She reported that she had a good relationship with her husband and at least five close friends with whom she socialized. On examination, the Veteran appeared clean, neatly groomed, and appropriately dressed. She was cooperative. Her psychomotor activity, speech, thought process, and thought content were unremarkable. Her affect was normal and her attention was intact. Her mood was anxious. She was able to do serial 7's and spell a word forward and backwards. Orientation was intact to person, time, and place. She had no delusions or hallucination and judgment and insight were intact. She reported sleeping "fairly well" and said she had no problems falling asleep. She did report waking up 3 to 4 times per night, sometimes to use the bathroom but at other times she was not sure why. She did not exhibit any inappropriate behavior. She interpreted proverbs appropriately and did not have any obsessive or ritualistic behavior. She denied any homicidal or suicidal thoughts. Impulse control was good. The examiner indicated that the Veteran did not exhibit any impaired thought or communication process. Her memory was normal. The diagnosis was panic disorder without agoraphobia. The examiner assigned a current GAF score of 68. The examiner opined that the Veteran met the criteria for a 10 percent rating, i.e., transient or mild symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, but that she did not meet the criteria for a 30 percent rating, i.e., occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. A May 2010 VA telephone note reflects that the Veteran reported that she had increased her venlafaxine to 150 mg and thought that it worked better. She said wanted to schedule an appointment to have her prescription changed. In October 2010, it was noted that she had increased the dosage of Effexor and that it seemed to be working well. She said she had increasing anxiety and stress at work due to conflicts with co-workers. She said she was not sleeping well and had difficulty staying asleep. Her Effexor was increased to 225 mg and she was given a prescription for Ambien. On March 1, 2011, a VA outpatient treatment record reflects that the Veteran presented with acute stress and anxiety. She had elevated blood pressure at work and was encouraged to see her primary care provider. She said that she was not getting along with her boss and felt her boss was picking on her. She reported feeling very anxious, getting more migraines, and grinding her teeth. The physician noted that the elevated blood pressure was likely related to a panic attack. The Veteran said she did not have time for regularly scheduled mental health appointments, but she denied any suicidal ideations. The physician increased her Effexor by another 37.5 mg daily and added Xanax to her regimen to take as needed. During the April 2011 Board hearing, the Veteran testified that her panic disorder symptoms had increased. She said that although her panic attacks were well-controlled, she felt anxious on a daily basis. She said that she believed she should be entitled to a higher rating because she has to take medicine every day. She said that she worked during the day as a file clerk and attended school at night for nursing. A July 2011 VA telephone note reflects that the Veteran reported that she had increased depression/anxiety and had been taking Effexor at the maximum dose for the past 3-4 months. In the past two weeks, she said that she had increasing anxiety/panic attacks and awaked from sleep with palpitations and shortness of breath. She said that her job remained stressful, but had improved since changing offices; however, she felt more easily tearful. She said she had been requiring Xanax at least daily and occasionally overnight. She denied any suicidal ideations and indicated she was willing to begin therapy with Buspar and continue Effexor and Xanax. The report of an August 2011 VA examination reflects the Veteran's complaints of an anxious mood on a daily basis during the past year of moderate severity. She said that she has 4 to 5 panic attacks per week during the past year of moderate severity. She said that she had a fair response to treatment, but had to have her medication increased. She reported having a good relationship with her husband and a small group of close friends. On mental status examination, she was clean and casually dressed. She was cooperative and attentive. There was mild psychomotor agitation observed. Her mood was anxious and her affect was constricted. Her speech, thought process, and thought content were unremarkable. She was oriented to person, time, and place. She reported having difficulty sleeping and that she only slept 5 to 6 hours per night. She did not have any hallucinations, inappropriate behavior, or homicidal or suicidal thoughts. She reported that she compulsively cleaned. Here memory was normal. She said that she worked fulltime and lost a week of work in the past year due to high levels of anxiety. The diagnosis was panic disorder without agoraphobia. The examiner assigned a current GAF score of 62. The examiner indicated that the Veteran met the criteria for a 50 percent rating, i.e., reduced reliability and productivity due to anxious mood and panic attacks, but that she did not meet the criteria for a 70 percent rating, i.e., deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Prior to March 1, 2011, the Veteran's panic disorder was manifested by occasional anxiety and difficulty sleeping, which required continuous medication. After restarting Effexor, during the March 2010 VA examination, she reported having no difficulties falling asleep and said she slept fairly well. She denied having any panic attacks in the past year and said she only felt anxious about 5 days per month. Furthermore, the examiner assigned a GAF score of 68, which is indicative of mild symptoms, and opined that the Veteran met the criteria for a 10 percent rating, but not the criteria for a 30 percent rating. Furthermore, although she reported that she had increased anxiety and difficulty sleeping in May 2010, she said that she had increased her Effexor and it seemed to be working better. Overall, the Board finds that these symptoms more nearly approximate 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, the level of impairment contemplated in the currently assigned 10 percent disability rating for the period prior to March 1, 2011. At no point prior to March 1, 2011, did the symptoms meet the criteria for a rating in excess of 10 percent. In this regard, the evidence of record did not objectively show that the Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to her panic disorder symptomatology. Rather, the Veteran reported occasional anxiety and difficulty sleeping, which was well-controlled with medication. She also denied having any panic attacks during this time period. For the above-stated reasons, the Board finds that, for the period prior to March 1, 2011, the Veteran's psychiatric disability picture more nearly approximated the criteria for the 10 percent rather than the 30 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 30 percent rating are not met, it logically follows that the criteria for the higher ratings of 70 percent and 100 percent are likewise not met. Since March 1, 2011, the Veteran's panic disorder has been manifested by chronic anxiety, panic attacks more than once a week, and difficulty sleeping, with only fair response to medication. In this regard, the Veteran had an acute anxiety or panic attack in March 2011, which required her to leave work and seek medical attention. After that episode, she began taking the maximum dose of Effexor and added Xanax and Buspar to her daily regime. Despite additional medication, in August 2011, she reported having 4 to 5 panic attacks per week of moderate severity. She also estimated that she lost about one week of work in the past year due to a high level of anxiety. The examiner assigned a GAF score of 62, which is indicative of only mild symptoms, but opined that the Veteran met the criteria for a 50 percent rating. Overall, the Board finds that these symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, the level of impairment contemplated in the currently assigned 50 percent disability rating for the period since March 1, 2011. At no point since March 1, 2011, did the symptoms meet the criteria for a rating in excess of 50 percent. In this regard, the evidence of record did not objectively show that the Veteran had deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Although she had stress at work and occasionally could not work due to anxiety, she did not exhibit deficiencies in most areas. She reported that her relationship with her husband was good and she maintained a few close friendships. Although she had frequent panic attacks, she did not have near-continuous panic affecting her ability to function independently appropriately and effectively. She was working fulltime and attending school at night. For the above-stated reasons, the Board finds that, for the period since March 1, 2011, the Veteran's psychiatric disability picture more nearly approximates the criteria for the 50 percent rather than the 70 percent rating. See 38 C.F.R. § 4.7. As the criteria for the next higher, 70 percent rating are not met, it logically follows that the criteria for a higher rating of 100 percent are likewise not met. As indicated above, the Board has certainly considered the Veteran's assertions as to her psychiatric symptoms, which she is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds her statements to be credible; however, for the reasons discussed above, her descriptions regarding the frequency and severity of her symptoms do not support ratings higher than those currently assigned. The Board has also considered whether referral for extraschedular ratings is appropriate. Such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. Jul. 17, 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. Here, the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Significantly, the rating criteria include higher ratings where symptomatology of the appropriate degree is demonstrated. As such, referral for extraschedular consideration is not warranted. In addition, the Board has considered the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), where the Court held that a claim for a total disability based on individual unemployability (TDIU) either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, although the Veteran has reported that she occasionally loses time from work due to high states of anxiety, she has not alleged that her disability renders her unemployable. During the Board hearing and VA examinations, she said that she was employed fulltime in an office as a file clerk. As such, the Board finds there is no implicit claim for TDIU. In sum, the Board finds that ratings in excess of 10 percent prior to March 1, 2011 and in excess of 50 percent from that date are not warranted for the Veteran's service-connected panic disorder. As the preponderance of the evidence is against the claims for higher ratings, the "benefit-of- the-doubt" rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). ORDER An initial rating in excess of 10 percent for panic disorder prior to March 1, 2011, is denied. A rating in excess of 50 percent for panic disorder from March 1, 2011, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs