Citation Nr: 0814834 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 00-13 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to June 21, 1999, for the grant of a 30 percent disability evaluation for anxiety disorder with somatization features. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from April 1977 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2000 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a personal hearing at the RO in August 2000. The issue on appeal was originally before the Board in September 2006 when it was remanded to cure a procedural defect. FINDINGS OF FACT 1. A June 11, 1998 rating action denied the veteran's claim of entitlement to a rating in excess of 10 percent for anxiety disorder with somatization features. The veteran did not file an appeal within one year of this decision and it is now final. 2. Clinical records dated from June 1998 to June 1999 are considered informal increased rating claims for the service- connected psychiatric disability; the evidence of record does not demonstrate that an increased rating for anxiety disorder with somatization features was factually ascertainable between June 12, 1998 and June 20, 1999. CONCLUSION OF LAW The criteria for an effective date prior to June 21, 1999, for a grant of a 30 percent evaluation for anxiety disorder with somatization features are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.155, 3.157, 3.400, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist The Veteran's Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection for anxiety disorder with somatization features and assigned a rating and an effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2006 VCAA letter provided notice on the "downstream" issue of effective dates of an award. Neither the veteran nor his representative has alleged that notice in this case was less than adequate. The veteran's service medical and pertinent treatment records have been secured. He has not identified any pertinent evidence [e.g., constructively of record] that remains outstanding. In November 2006, the veteran reported that he had no further evidence to submit in support of his claim. Thus, VA's duty to assist is also met. Notably, where, as here, the claimant seeks an earlier effective date for an award, the dispositive evidence is that already of record, and the dates on which it was received. Accordingly, the Board will address the merits of the claim. Effective date criteria and analysis The veteran argued at his RO hearing that he is entitled to an earlier effective date as his psychiatric service connection had been level for a long period of time, since at least 1980. He thought his 30 percent evaluation should date back to his original claim. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefore. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Regulations provide the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In addition, the Court has indicated that it is axiomatic that the fact that must be found is that the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Also, with regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report or a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.157 provides that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year. On June 11, 1998, the RO denied the veteran's claim for a rating in excess of 10 percent for his service-connected anxiety disorder with somatization features. The veteran did not appeal the denial of the claim which became final. See 38 U.S.C.A. § 7105. A higher rating will not be assigned prior to that final decision as the veteran has not claimed that the decision contained clear and unmistakable error (CUE). See Rudd v. Nicholson, 20 Vet. App. 296 (2006). As such, the effective date for the veteran's 30 percent evaluation for anxiety disorder with somatization features cannot be prior to June 11, 1998, the date of the prior final rating decision. Therefore the pertinent time period for potential assignment of a 30 percent evaluation is from June 12, 1998, to June 20, 1999. In July 1999, the veteran submitted a claim for an increased rating. He reported that he was receiving treatment at a VA medical facility. The Board notes, however, that prior to July 1999, numerous VA clinical records and Social Security records document treatment for the service-connected anxiety disability. The Board finds that each of these clinical records constitutes an informal request for an increased evaluation. The Board further finds, however, that the preponderance of the evidence of record dated during the pertinent time period indicates that the veteran's service-connected anxiety disorder with somatization features was not productive of sufficient symptomatology to warrant a 30 percent evaluation prior to June 21, 1999. The service-connected anxiety disorder is evaluated under Diagnostic Code 9400. Under this Diagnostic Code, a 10 percent rating is assigned where there is occupational and social impairment due to mild and transient symptoms that decrease work efficiency and ability to perform occupational tasks only during significant stress or with symptoms controlled by continuous medication. 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, and mild memory loss (such as forgetting names, directions, recent events). 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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. The pertinent evidence is set out below. A June 17, 1998, mental health treatment plan indicated that the veteran had active diagnoses of alcohol dependence, cocaine dependence and anxiety disorder. He lacked a sober support system and had difficulty balancing and structuring leisure. He also lacked sober recreation skills. He had unresolved grief issues concerning his mother's death. He had difficulty identifying and managing stress. A Global Assessment of Functioning score of 50/100 was assigned. A July 1, 1998, psychiatry outpatient note indicates that the veteran was starting a new job soon as a forklift operator. His mood remained depressed, though not severely, and anxiety was still present to a bothersome degree. On July 16, 1998, it was noted that the veteran had completed a vocational rehabilitation group and had immediately found employment which began in July 1998. He reported frequent anxiety but managed it well. He was outgoing and well liked amongst peers. A July 17, 1998, mental health treatment plan indicated that the veteran had active diagnoses of alcohol dependence, cocaine dependence and anxiety disorder. It was noted that the veteran had unresolved grief issues concerning his mother's death and loss of drugs. He had difficulty identifying and expressing emotions. He also displayed self- destructive attitudes and behaviors including perfectionism and minimizing high risk situations. A GAF of 50/100 was set out. A document from a VA case manager dated August 4, 1998, indicates that the veteran was a resident at a VA domiciliary in the Sobriety Living Unit. He was being treated for depression, anxiety and substance abuse. It was noted that the veteran continued to experience anxiety despite medication. It was recommended to the veteran that he make a vocational change to reduce stress and anxiety. His past employment required overtime and demanding interpersonal contact which could put the veteran at risk regarding managing anxiety and recovery from substance abuse. A psychological evaluation was conducted on August 5, 1998, in connection with the veteran's application for Social Security benefits. The veteran was applying for Social Security Disability benefits due to anxiety and depression problems. The veteran believed the primary problem interfering with his employability was anxiety in social situations and secondarily, depression. The veteran recognized that he was affected by anxiety in social situations. He reported symptoms of a panic attack three times per week. The symptoms involved rapid breathing and/or shortness of breath, shakiness, nausea, sweatiness and a stomach ache. He would often leave the social context in which the anxiety was occurring. The veteran believed he was less anxious and less depressed while on medications. The veteran denied any suicidal ideation and also vegetative symptoms of depression. Sleep was improved and appetite and energy were okay. He was able to attend to the responsibilities of the domiciliary effectively including keeping his room clean. The veteran continued to isolate to some degree which was secondary to his social anxiety. The veteran believed that his anxiety disorder interfered with his employment following his discharge. The veteran was unemployed and the social anxiety component seemed to be the primary impediment at this time. The veteran was divorced but saw one of his children approximately every week. He also saw his sister weekly. He had a girlfriend he saw periodically. The examiner opined that the veteran had the capacity to independently sustain all functional activities of daily living. Mental status examination revealed that the veteran was alert and oriented in three spheres. Grooming and hygiene were good. The veteran was always in contact with reality. The stream of mental activity was spontaneous and goal-directed. There was no history of psychotic processes. The veteran did describe anxiety up to the level of a panic attack approximately three times per day in social situations. He described improvement in his depression. He had some difficulty sleeping. There were no crying spells or suicidal ideation voiced. Some social withdraw occurred secondary to his social anxiety. No psychomotor retardation or agitation was described. Performance for memory testing was variable. The veteran demonstrated intact abstraction capacity and social judgment. The pertinent part of the summary was that the veteran's anxiety problems occurred in a social context and led to panic attacks approximately three times per week. The veteran's capacity for activities of daily living was intact. He had sufficient attention, memory and concentration for employability at the time of the examination. The veteran had long standing difficulty maintaining employment due to social phobia which could improve with treatment. An August 12, 1998, clinical record reveals the veteran was working as a fork-lift driver and, after three weeks, was being promoted to shift supervisor. His mood was stable and anxiety was resolved. He appeared to be thriving. An August 17, 1998, clinical record indicates that the veteran had been offered a promotion to a supervisor position. The veteran reported increased loneliness, wanting a significant other, but had taken steps to avoid becoming involved in the first year of his sobriety. He had contact with his son. He was tapering down his psychiatric medication. He had a good support system through his church, community meetings and his brother and sister. A September 21, 1998, clinical record indicates that the veteran had begun searching for a different job in management. He had turned down a promotion at his current employment as it would have entailed overtime. The veteran was seeing a women. He continued to experience anxiety but had developed coping skills that made it manageable along with medication. An October 1998 summary of the veteran's stay at a VA domiciliary reveals he was there from March 1998 to October 1998. The veteran was followed by the psychiatric clinic for treatment of his anxiety disorder. On March 23, 1999, it was noted that the veteran was dressed in his work uniform. His affect was happy and his mood was good. He reported no problems. On June 4, 1999, the veteran was found to be well groomed and cooperative. Behavior was normal and affect was appropriate. Speech was normal. Perception was normal and thinking was logical without unusual content. A June 11, 1999, VA clinical record noted stressors due to financial problems. The veteran was working two jobs part time and had a fiancée. His affect was appropriate but depressed. His behavior was normal. Speech and perception were normal. Thinking was logical without unusual content. The pertinent axis I diagnosis was depression. A GAF of 65/100 was given. The veteran was hospitalized at a VA facility beginning on June 16, 1999. The primary reason appeared to be due to substance abuse. A June 18, 1999 social work assessment reveals the veteran denied suicidal or homicidal ideation. He was working two jobs with the hopes of securing one full time job. He was in communication with his children and had a fiancée. The veteran was being evicted from his apartment for failure to pay rent. Problems were homelessness, indebtedness and chronic patterns of substance abuse. The Board finds the evidence of record dated during the pertinent time period demonstrates that the veteran's service-connected psychiatric disorder more nearly approximates a 10 percent evaluation under Diagnostic Code 9400. The medical evidence documents complaints of anxiety but the evidence also demonstrates that the veteran was able to obtain successful employment. In fact, he was offered a promotion after being on the job for three weeks. The clinical record dated August 4, 1998, includes a reference to the veteran's anxiety affecting his employment. It was suggested that he change employment to reduce stress and anxiety. The Board notes that, during the pertinent time period, the veteran was able to maintain employment and there is no indication that he was under employed. The clinical record dated 8 days later indicates the veteran was being promoted to shift manager and that his anxiety had resolved. His success on the jobs (including promotions) leads the Board to find that the veteran's anxiety did not affect his employment during the pertinent time period. The greatest level of impairment is that documented in the report of the August 5, 1998, medical examination conducted for the veteran's Social Security claim. The examiner who conducted this examination noted that the veteran was unemployed and that the primary problem interfering with the employment was the veteran's anxiety in social situations and also depression. This examiner also noted the veteran reported panic attacks occurring several times per week. This evidence, standing alone, would warrant a rating in excess of 10 percent and possibly as much as 100 percent based on a liberal reading of the record to indicate the veteran was unemployable due to anxiety. When the evidence is read in connection with the rest of the evidence of record, however, the Board finds that the examiner's assessment as to the veteran's employment was inaccurate. The VA clinical record dated August 12, 1998 reveals the veteran had been employed as a fork lift operator, and after three weeks, was being promoted to shift supervisor. This evidence indicates that the veteran was actually employed at the time of the August 5, 1998, medical examination. Subsequent clinical records demonstrate that the veteran maintained his employment and was even searching for better employment in a management position. The Board finds that this examiner's opinion that the veteran was unemployed as a result of social anxiety is not supported by the other clinical evidence of record. The Board finds the preponderance of the medical evidence of record indicates that the veteran was employed for the most part during the pertinent time period. The Board notes the August 5, 1998, report of the medical examination includes references to the veteran experiencing panic attacks several times per week. This symptomatology would warrant a 50 percent evaluation under Diagnostic Code 9400. Significantly, however, none of the other clinical evidence of record dated prior to and subsequent to August 5, 1998, mentions the presence of panic attacks. Furthermore, a clinical record dated 7 days later includes the annotation that the veteran's anxiety was resolved. Other records reference the presence of anxiety but indicate the veteran was able to manage the problem. The Board finds the determination by the examiner who prepared the August 5, 1998, report of medical examination that the veteran had panic attacks several times per week or even several times per day is not supported by the other clinical evidence of record. There was no mention of panic attacks. The Board finds the preponderance of the medical evidence of record demonstrates that the veteran did not experience panic attacks during the pertinent time period. An increased rating based on the presence of panic attacks more than once per week is not warranted. The Board notes that several of the clinical records include Global Assessment of Functioning scale scores of 50 out of 100. The Court has held that Global Assessment of Functioning (GAF) scores are 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); Richard v. Brown, 9 Vet. App. 266 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.), p. 32 (DSM-IV)). GAF scores ranging from 41 to 50 reflect 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). GAF scores ranging from 51 to 60 reflect more 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). Id. 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. The low GAF scores of 50 assigned in June 1998 and July 1998 would seem to potentially warrant an increased rating for the anxiety disorder with somatization features. The Board notes, however, that the GAF scores assigned in June 1998 and July 1998 were apparently based on service-connected and non service-connected disorders. Both records include diagnoses of alcohol dependence and cocaine dependence along with diagnoses of anxiety disorder. Furthermore, the veteran was being treated for substance abuse at that time. There is no indication that the low GAF score was due solely to the anxiety disorder. The Board finds this evidence does not warrant assignment of an increased rating. Based on the above, the Board finds the symptomatology associated with the veteran's service-connected anxiety disorder with somatization features more nearly approximated a 10 percent evaluation under Diagnostic Code 9400 from June 11, 1998, to June 20, 1999. A rating in excess of 30 percent prior to June 21, 1999 is not warranted. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to an earlier effective date. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date prior to June 21, 1999, for the grant of a 30 percent evaluation for anxiety disorder with somatization features is not warranted. The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs