Citation Nr: 0812699 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 00-21 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. What evaluation is warranted for an anxiety disorder from September 9, 1999, to March 26, 2006? 2. What evaluation is warranted for an anxiety disorder from March 27, 2006? REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran had active duty from August 1963 to June 1964. This claim comes before the Board on appeal of a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This decision granted service connection for an anxiety disorder, and assigned a 10 percent disability rating, effective from September 9, 1999. In a July 2006 rating decision the rating was increased to 30 percent, effective from September 9, 1999. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later- filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). As such, the Board has styled the issues as indicated on the title page. For the reasons outlined below, this case is, in part, REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. Consistent with the instructions below, VA will notify the veteran of any further action required on his part. FINDING OF FACT For the period from September 9, 1999, to March 26, 2006, the veteran's anxiety disorder was not manifested by social and occupational impairment, with reduced reliability and productivity. CONCLUSION OF LAW From November 7, 2005, through March 26, 2006, a rating in excess of 30 percent for anxiety disorder was not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.2, 4.7, 4.10, 4.130, Diagnostic Code (Code) 9400 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. In this regard, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation and effective date assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Further, VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The May 2006 correspondence and the August 2006 statement of the case both essentially informed the claimant of the need to submit all pertinent evidence in his possession. The claim was readjudicated in a March 2008 supplemental statement of the case. Correspondence dated in May 2006 provided adequate notice of how effective dates are assigned. The claimant has been afforded a meaningful opportunity to participate in the adjudication of the claim, and in the August 2006 statement of the case he was provided actual notice of the rating criteria used to evaluate the disorder at issue. The claimant was provided the opportunity to present pertinent evidence in light of the notice provided. Because the veteran has actual notice of the rating criteria, and because the claim has been readjudicated no prejudice exists. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor his attorney have suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson. In a January 2006 rating decision, service connection for anxiety disorder was granted and rated under 38 C.F.R. § 4.130, Diagnostic Code (Code) 9400, a 10 percent disability rating was assigned, effective September 9, 1999. In July 2006 the RO increased rating to 30 percent, effective from September 9, 1999. Code 9400 provides that a 30 percent rating is warranted for occupational and social impairment with an 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, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The Global Assessment of Functioning (GAF) scale is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When a question arises as to which of two evaluations shall be assigned, 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. In determining whether a higher rating is warranted for a disease or disability, VA must determine whether the evidence supports the veteran's 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 (1990). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Factual Background With the above criteria in mind, the Board notes that the record since September 9, 1999, to January 13, 2008, includes two VA examinations, VA treatment records, and a private psychiatric examination report. The veteran was afforded a VA psychiatric examination in November 2001. The examiner commented that he had reviewed the veteran's claims folder. A mild panic disorder with agoraphobia, by history; and mild dysthymia were diagnosed. A GAF score of 65 was supplied. The veteran complained of constant anxiety, and of symptoms of depression such as dysphoria and crying. He also had feelings of guilt concerning friends who were killed in Vietnam. The veteran claimed to have been unable to work since 1987 due to his anxiety disorder. A December 1989 Social Security Administration decision found the veteran to be disabled due to severe panic disorder, agoraphobia, and dysthymia. The appellant mentioned that he had the support of family and friends. Examination showed the veteran to well groomed and to be alert and oriented. Insight was adequate. Affect was normal. Speech was fluent. He was logical and goal directed. He complained of symptoms of depression including mild dysphoria, occasional crying, and low self-esteem. He denied sleep problems. He reported past thoughts of suicidal ideation but none currently. He denied homicidal ideation. He reported symptoms of mild agoraphobia. The veteran claimed to be uncomfortable in social situations. No thought process nor content problem was evident. He denied delusions. The veteran also denied having hallucinations. He made good eye contact. The examiner noted that the veteran had mild impairment in adaptation and interactions in social functioning and mild impairment and flexibility and efficiency in occupational settings. The veteran's overall level of disability was described as mild. Review of a July 2005 outpatient urgent care record shows that the veteran complained of flashbacks, nightmares, and anger. He denied suicidal ideation. The veteran claimed to be afraid of crowds. Anxiety and depression were diagnosed. A psychiatric consult was ordered. A July 2005 VA geropsychiatric examination report shows that the veteran complained of depression and anxiety attacks. He noted some sleep problems. He denied suicidal ideation. He added that his anti-depressant medications caused him nightmares. Examination showed him to be alert and cooperative. He was casually dressed and groomed. A full range of affect was present. His mood was euthymic, and speech unremarkable. The veteran's thought process was linear and goal-directed. He denied delusions and hallucinations. No homicidal nor suicidal ideation was expressed. Insight and judgment were described as good. The examiner commented that he suspected that the appellant was malingering was suspected. A GAF score of 60 was provided. A July 2005 VA geropsychiatric examination report also shows that the examiner suspected malingering. A GAF score of 70 was supplied. The veteran was afforded a VA psychiatric examination in October 2005. The veteran expressed that he was very anxious. The veteran's claims file was reviewed by the examiner. The veteran reported problems with his wife because he never wants to do anything or go anywhere. A good relationship with his children was noted. He denied having close friends or hobbies, but indicated that we went to church about three times a month. He complained of only sleeping for four hours. The veteran denied that his symptoms affected his daily living . Examination showed the veteran to alert, oriented, and attentive. His mood was dysphoric, and his affect was mood congruent. There was some evidence of motor agitation. Speech was normal. Thought processes were logical and coherent. No hallucinations were reported. He was not delusional. He denied with suicidal or homicidal ideation. The veteran's memory was mildly to moderately impaired for immediate information, but intact for recent and remote events. Intelligence was average and insight was fair. An anxiety disorder, not otherwise specified; a panic disorder, and dysthymia were diagnosed. A GAF score of 53 was provided. The examiner opined that the veteran exhibited moderate to considerable symptoms associated with an anxiety disorder, panic, and dysthymia. Panic attacks occurring about three times a month were noted. Anxiety and a depressed mood were noted to be present on a daily basis. The examiner added that social adaptability and interactions with others was considerably impaired. Moderate to considerable impairment was noted relative to the veteran's ability to maintain employment. Overall, the examiner indicated that the veteran's level of disability was in the moderate to considerable range. Analysis After considering all of the evidence of record, including particularly the above referenced VA mental examination reports dated in November 2001 and October 2005, the Board finds that the veteran's service-connected anxiety disorder did not warrant a rating in excess of 30 percent at any time from September 9, 1999, to March 26, 2006. In this regard, between September 9, 1999, to March 26, 2006, the medical evidence of record fails to demonstrate that the criteria set out in 38 C.F.R. § 4.130, Code 9400, and necessary for the assignment of a 50 percent or higher rating, had been met. Of particular note, review of the above-discussed VA examination reports and VA outpatient medical records, while documenting an overall level of disability described as mild (November 2001) and moderate to considerable (October 2005), fails to demonstrate that the veteran's suffered from symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; and disturbance of motivation and mood. The Board acknowledges that in the course of the October 2005 VA examination some memory loss was reported, and the veteran also provided a history of three panic attacks a month. The Board also notes that GAF scores of 65, 70, and 53 were provided by VA examiners in November 2001, July 2005, and October 2005, respectively. A GAF score of between 51 and 60 indicates that the veteran has "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)." GAF scores ranging between 61 to 70 reflect "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, and has some meaningful interpersonal relationships." See DSM-IV. In light of the preponderance of the competent medical evidence being against any finding that the appellant's anxiety disorder was more than 30 percent disabling through March 26, 2006, the Board finds that an increased evaluation is not warranted for the period between September 9, 1999 and March 26, 2006. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER A rating in excess of 30 percent for anxiety disorder from September 9, 1999, to March 26, 2006, is denied. REMAND A March 27, 2006 letter from a private licensed clinical psychologist, C. Doyle, Ph.D., is of record. It notes that the veteran was examined in February and March 2006. A diagnosis of severe generalized anxiety disorder was supplied. A GAF score of 42 was also provided. The veteran reported having panic attacks and suicidal thoughts. He also complained of problems sleeping. The veteran also indicated that he avoided social interaction. The psychologist opined that the veteran was unemployable and totally disabled. The examiner is not, however, shown to have had an opportunity to review the veteran's claims folder, and any treatment records prepared by Dr. Doyle, though sought by the RO in November 2007, have yet to be added to the claims file. Thereafter, the veteran was afforded a VA mental disorders examination in January 2008. The examiner noted that he had reviewed the veteran's claims file in association with the examination. He also mentioned that he had examined the veteran in November 2001, at which time he diagnosed panic disorder with agoraphobia and mild dysthymia. The examiner acknowledged other medical evidence on file, including the March 2006 private medical report. The veteran complained of daily anxiety attacks, and daily suicidal thoughts. Mental status examination was, for the most part, normal. The veteran claimed daily suicidal ideation, but denied plan or intent. Anxiety disorder, not otherwise specified; and depressive disorder, not otherwise specified; were diagnosed. A GAF score was deferred. The examiner commented that the veteran was unable to provide many specific symptoms concerning his claimed anxiety disorder. He added that the presented significantly differently than when observed in 2001. The examiner added that given the difference in the veteran's performance, the difficulty in providing specific symptoms, and a question concerning the possibility that the veteran was malingering, psychological testing was warranted. In March 2008 the veteran underwent psychological testing, including the Miller Forensic Assessment of Symptoms Test and the Personality Assessment Inventory. The examiner commented that the findings associated with the Miller Forensic test were significantly above the cutoff and raised the question that the veteran was exaggerating or malingering symptoms of mental illness. Findings associated with the Personality Inventory were essentially within normal limits, and the examiner added that the findings indicated an attempt to either exaggerate or dissimulate psychiatric symptoms. As a result, the examiner did not provide any diagnosis on either Axis I, Axis II, Axis III, or Axis IV. He also did not supply a GAF score. The examiner commented that he was unable to provide a diagnosis, a GAF score, or describe functional impairment without resorting to mere speculation based on both the examination and the objective psychological testing. The Board finds striking the dissimilar psychiatric findings rendered by the VA examiner in January and March 2008, as opposed to those supplied by C. Doyle, Ph.D. in March 2006. As noted, in March 2006 the veteran was found by this private medical professional to have a severe anxiety disorder, with a GAF score of 42. In contrast, the VA examination strongly suggests that the appellant is a malingerer. In order to reconcile these disparate medical findings, the Board is of the opinion that the veteran should undergo a period of observation and evaluation at an appropriate VA medical facility. The Board again notes that C. Doyle, Ph.D. was asked by VA in November 2007 to supply medical records associated with treatment/evaluation afforded the veteran. He did not. As part of his March 2006 examination report he mentioned that he had seen the veteran on February 7th and March 15th. Per this remand, he should again be requested to supply any and all records associated with treatment afforded the veteran. Accordingly, the case is REMANDED for the following action: 1. With the veteran's cooperation, the RO should obtain for the record copies of any treatment records pertaining to treatment or evaluation provided by C. Doyle, Ph.D.. If these records cannot be obtained, the attempt to obtain them should be documented for the record, and the veteran informed in writing. If the veteran was never treated by Dr. Doyle, but merely examined at the request of his attorney that fact should be so stated. 2. The RO should request all medical records regarding the veteran's psychiatric treatment from the VA medical facility in Columbia, South Carolina, for the period from April 2006 to the present. If, after making reasonable efforts, the RO cannot locate such records, the RO must document what attempts were made to locate the records, and indicate in writing that further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. Thereafter, the veteran must be admitted for a period of VA observation and evaluation. During this term a psychiatric examination by a panel of two board certified psychiatrists must be scheduled and conducted in accordance with DSM-IV. All appropriate studies are to be performed. The examiners are instructed to determine the symptomatology and severity of any psychiatric disability present, to include an anxiety disorder, dysthymia, depression, and malingering. The examiners must attempt to reconcile the various competing diagnoses. It is imperative that the claims file be made available to the examiners for review in connection with the examination, and all indicated special studies and tests should be accomplished. 4. The veteran is hereby notified that it is his responsibility to report for the period of observation and evaluation, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for the ordered period of observation and evaluation, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. The RO should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Then, the RO should review any additional evidence and readjudicate the veteran's claim -- What evaluation is warranted for anxiety disorder from March 26, 2006? -- under all appropriate statutory and regulatory provisions and legal theories. If the benefit sought on appeal remains denied, the veteran and his attorney should be provided with a supplemental statement of the case (SSOC) that includes all evidence added to the file since the March 2008 SSOC. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs