Citation Nr: 0526922 Decision Date: 10/03/05 Archive Date: 10/17/05 DOCKET NO. 03-21 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an increased rating for generalized anxiety disorder, currently evaluated as 50 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD M.C. Peltzer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1962 to June 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in San Juan, the Commonwealth of Puerto Rico, by which his service-connected anxiety reaction was separately evaluated as 50 percent disabling. The veteran voiced disagreement with his psychiatric disability rating in April 2003 and in June 2003, a statement of the case (SOC) was issued and the veteran's substantive appeal was received. The Board remanded this appeal in April 2004 for additional development. The requested development is now complete and this matter is again before the Board for appellate review. Due to the favorable nature of the veteran's increased rating claim, in combination with the veteran's statements in support of claim, the Board has inferred a claim of entitlement to a TDIU rating. FINDINGS OF FACT 1. All evidence requisite for an equitable disposition of this matter has been developed and obtained, and all due process concerns have been addressed. 2. The veteran's generalized anxiety disorder is manifested by the type and degree of symptoms resulting in occupational and social impairment with deficiencies in most areas. 3. The veteran's service-connected disabilities are sufficiently disabling as to preclude him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no more, for generalized anxiety disorder are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.130, Diagnostic Code 9400 (2004). 2. The schedular criteria for a TDIU rating are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim The veteran contends that his service-connected psychiatric disorder is not properly evaluated. In evaluating service- connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (2004). The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Id.; 38 C.F.R. §§ 4.1, 4.2 (2004). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2004). The determination of the merits of the claim must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that evidence supporting a claim or being in relative equipoise is more than evidence that merely suggests a possible outcome. Instead, there must be at least an approximate balance of positive and negative evidence for the veteran to prevail. Id. at 56. Service connection was originally granted for anxiety reaction as secondary to the veteran's service-connected cavernous hemangioma, left axilla, by a November 1968 rating decision. The psychiatric disability was separately rated as 30 percent disabling and the veteran's overall combined disability rating was 50 percent. An April 1983 rating decision shows that the veteran's disabilities were no longer rated separately and his cavernous hemangioma, left axilla, with anxiety reaction was rated as 50 percent disabling. In November 2001, the veteran filed his current increased rating claim, indicated that his service-connected disabilities had worsened considerably. A rating decision was issued in July 2002 by which the veteran's two service-connected disabilities were again separately rated. His cavernous hemangioma, left axilla, was rated as 20 percent disabling while his generalized anxiety disorder was separately evaluated as 50 percent disabling, for a combined 60 percent disability rating. The veteran has expressed disagreement and perfected an appeal seeking a higher disability rating for his psychiatric disability. The veteran's current 50 percent disability rating contemplates anxiety manifested by occupational and social impairment with reduced reliability and productivity, due to such symptoms as flattened affect, circumstantial, circumlocutory or stereotyped speech, more than weekly panic attacks, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2004). A higher 70 percent evaluation contemplates 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 that interfere with routine activities, speech that is 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2004). The symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular psychiatric schedular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The April 2003 VA medical record from the veteran's treating physician indicates that the veteran's condition is characterized by sadness, irritability, depression, isolation, and a lack of good intention and concentration. The record indicates he was experiencing an exacerbation of mood swings and he still had some suicidal ideas. The May 2002 VA examination report shows that the veteran had an anxious and depressed mood and required daily anti-depressant medication. While the evidence is not indicative of symptoms such as obsessional rituals or having the speech difficulties, the evidence does reveal suicidal ideas, near- continuous depression affecting the ability to function independently, appropriately and effectively, and difficulty in adapting to stressful circumstances. Therefore, with resolution of every reasonable doubt in the veteran's favor, the Board concludes that the evidence reveals a disability picture that approximates the type and degree of symptoms contemplated by the criteria for a 70 percent disability rating. However, a higher rating is not warranted. A 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2004). While the April 2003 VA medical record reflects that the veteran's treating physician referred to the veteran having complete social and industrial inadaptability, the examiner's opinion refers to conditions in addition to the veteran's psychiatric disability when opining on adaptability. Therefore, the April 2003 VA medical record is not persuasive that the veteran's psychiatric disability approximates the criteria for a 100 percent disability rating. His VA treatment records indicate he was alert, oriented to person, place and time, and well-groomed. The May 2002 VA examination report shows he had adequate hygiene and was appropriately dressed. The evidence shows that he had normal abstraction capabilities, good judgment and insight, coherent and logical thought processes, and an intact memory. See May 2002 examination report. Therefore, the Board concludes that the evidence does not indicate that the veteran's anxiety disorder is manifested by the type and degree of symptoms contemplated by the criteria for a 100 percent disability rating. In short, the criteria for a 70 percent disability rating, but no more, for generalized anxiety disorder are met and to this extent the appeal is granted. To the extent that the weight of the evidence is against a disability rating in excess of 70 percent, the doctrine of reasonable doubt is not for application. See Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). Furthermore, the Board has no reason to doubt that the veteran's service-connected psychiatric disability limits his efficiency in certain tasks. However, the evidence of record is not indicative of an exceptional or unusual disability picture and is not reflective of any factor that takes the veteran outside of the norm. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, the Board finds that the veteran's disability picture does not warrant referral for the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (2004). TDIU Rating The veteran has contended that he is entitled to a 100 percent disability rating. As indicated above, the veteran's anxiety disability does not approximate the schedular criteria for a 100 percent disability rating. However, the veteran has submitted evidence of unemployability while arguing that he is entitled to a 100 percent disability rating. See attachment to April 2003 notice of disagreement and June 2003 substantive appeal. As such, the Board infers that the veteran has raised a claim of entitlement to a TDIU rating that must be addressed by VA. See Norris v. West, 12 Vet. App. 413 (1999); Roberson v. Principi, 251 F.3d 1378 (2001). The focus of a TDIU claim is on whether the service-connected conditions would render it impossible for the average person to follow a "substantially gainful occupation." Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In determining whether the veteran is entitled to a TDIU rating, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 4.16(a), 4.19 (2004). A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service- connected disabilities provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2004). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b) (2004). The veteran's combined disability rating is 80 percent. As indicated above, his service-connected generalized anxiety warrants a 70 percent disability rating. The veteran is also service-connected for hemangioma cavernous, left axilla, which is evaluated as 20 percent disabling. The veteran meets the schedular threshold for determining whether he is entitled to a TDIU rating. See 38 C.F.R. § 4.16 (2004). Moreover, the veteran submitted an April 2003 VA treatment record that contains a principal diagnosis of major mood disorder (depressed with anxiety) and a secondary diagnosis of cavernous hemogram, left hemithorax axilla. The record also reflects that the veteran's treating psychiatrist indicated that the veteran's physical and emotional symptoms totally incapacitated the veteran in a gainful job situation with complete social and industrial inadaptability. The veteran is also in receipt of SSA disability benefits based on his service-connected disabilities. See March 1989 SSA determination record. As the record indicates that the veteran's service-connected disabilities rendered him unemployable, an award of TDIU benefits is warranted. Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must be provided prior to the adjudication appealed, and must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. As the issue of entitlement to a TDIU rating has been resolved in the veteran's favor, the Board dispenses with ensuring compliance with the VCAA for this issue and finds that the veteran's interests have not been prejudiced by the Board addressing it in the first instance. As for his increased rating claim, the Board finds that the VCAA notice requirements have been satisfied by virtue of the letter sent to the veteran in May 2004. The letter notified the veteran of elements (1), (2) and (3), see above, for his increased rating claim, and the letter requested he send evidence in his possession in compliance with element (4). See Mayfield v. Nicholson, 19 Vet. App. 109 (2005). With respect to the timing of the notice, the Board finds that any defect with respect to the timing was harmless error. Although complete notice was provided to the veteran after the initial adjudication of his claim, he has not been prejudiced thereby. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. In addition, the actions taken by VA have essentially cured the error in the timing of notice (i.e., VCAA compliant notice with subsequent VA process). While the notice sent the veteran prior to initial adjudication of his claim was legally insufficient, these deficiencies were subsequently cured by May 2004 letter. The veteran responded later that same month indicating that he did not possess any records and that all his treatment was received from VA. After waiting a sufficient amount of time, the RO readjudicated his claim and issued a supplemental SOC in March 2005. Under these circumstances, the Board is satisfied that any error in timing of the notice was harmless. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2004). The veteran has been afforded a VA examination for his increased rating claim and the resulting report has been obtained. See 38 C.F.R. § 3.159(c)(4) (2004). The veteran's VA medical records, SSA records, and evidence from his treating physician have been associated with the veteran's claims file. As the veteran has not identified or properly authorized the request of any other evidence, the Board concludes that no further assistance to the veteran regarding development of evidence is required. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). ORDER A 70 percent disability rating, but not greater, for generalized anxiety disorder is granted, subject to the laws and regulations governing the disbursement of VA benefits. A TDIU rating is granted, subject to the laws and regulations governing the disbursement of VA benefits. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs