Citation Nr: 0814947 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 07-19 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a rating in excess of 30 percent for a panic disorder. REPRESENTATION Appellant represented by: Maine Veterans' Services ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from May 1950 to October 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, which, in pertinent part, found that a rating in excess of 30 percent for panic disorder was not warranted. The Board notes that the issues of entitlement to service connection for impaired circulation of the legs and breathing difficulty, entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU), and entitlement to automobile or adaptive equipment were addressed in the veteran's September 2006 notice agreement and April 2007 statement of the case. However, in the June 2007 substantive appeal, the veteran limited the appeal to the issue of entitlement to a rating in excess of 30 percent for a panic disorder. The Board will limit therefore limit its decision to the claim for an increased rating and the other issues are considered withdrawn. The Board also notes that disposition of this case has followed a grant of a motion to advance this appeal on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). FINDING OF FACT The veteran's panic disorder manifests occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; there is no indication of such symptoms as a flattened affect or weekly panic attacks. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for panic disorder have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9412 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in February 2006, prior to the initial adjudication of the claim, the RO notified the veteran of the evidence needed to substantiate his claim for an increased rating. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the February 2006 letter contained a notation that the veteran should submit any evidence in his possession pertinent to the claim on appeal. The veteran was notified of the first three elements of the Dingess notice by the February 2006 letter and he received information regarding the effective date and disability rating elements of his claim in March 2006. The Board observes that this case is also affected by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this decision, the Court found that, at a minimum, adequate VCAA notice in increased rating cases requires: (1) that VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. The February 2006 letter informed the veteran that to substantiate the claim, he should submit evidence showing that the disability had worsened. It also provided examples of the types of evidence that he could submit or ask VA to obtain. The issue currently before the Board is entitlement to an increased rating for a panic disorder. The relevant rating criteria, as outlined below, provide for disability ratings not based on specific measurements or test results. In addition, the veteran has been specifically notified by the March 2006 Dingess notification letter that he should submit evidence demonstrating the effect his disabilities have had on his employment. While the veteran has not received specific notification that he should submit evidence showing the effect of his disability on his daily life, the Board does not find that any procedural defect constitutes prejudicial error in this case because of evidence of actual knowledge on the part of the veteran and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The notice defect does not constitute prejudicial error in this case because the veteran demonstrated actual knowledge of the need for evidence of the impact of his disabilities on employment and daily life, specifically in his August 2007 Form 646 filed on his behalf by his representative. The veteran's representative noted that the veteran's panic disorder had restricted his work, his day-to-day activities, and his ability to perform in normal everyday situations. Because of these restrictions, the veteran's representative stated that an increased rating should be granted under the applicable criteria. The Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim. Vazquez-Flores, 22 Vet. App. at 48, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). This showing of actual knowledge establishes that there was no prejudice from the absence of complete notice on the first and third elements of Vazquez-Flores notice. Additionally, the numerous VCAA letters provided notice on the fourth element of Vazquez-Flores notice by providing examples of evidence the veteran could submit or ask VA to assist in obtaining. Finally, the April 2007 statement of the case (SOC) included a discussion of the rating criteria utilized in the present case. While such post adjudication notice cannot serve as VCAA notice, Pelegrini II; it should have served to advise a reasonable person that if an increased rating was provided a percentage evaluation would be provided under a diagnostic code. The veteran had a reasonable opportunity to participate in the adjudication of his claim, inasmuch as it remained pending for months after the rating decision and SOC. The veteran was accordingly made aware of the requirements for increased evaluations pursuant to Vazquez- Flores. The Duty to Assist 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). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. Additionally, the veteran was provided a thorough VA examination in conjunction with his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is 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; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). 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 evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. 38 C.F.R. § 4.126(a) (2007). When evaluating the level of disability from a mental disorder, VA 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(b) (2007). The schedular criteria, effective as of November 7, 1996, incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. A rating of 30 percent is warranted for panic disorder if 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9412. A 50 percent rating is warranted for panic disorder if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id A 70 percent disability evaluation is warranted for panic disorder manifested by 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 worklike setting); or the inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted for panic disorder which is productive of 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; or memory loss for the names of close relatives, own occupation, or own name. Id. 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 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF 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 GAF score of 71-80 represents "symptoms[, if] . . . present, . . . . are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social occupational, or school functioning (e.g., temporarily falling behind in schoolwork)." Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran 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, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Ultimately in Mauerhan the Court upheld the Board's decision noting that the Board had considered all of the veteran's psychiatric symptoms, whether listed in the rating criteria or not, and had assigned a rating based on the level of occupational and social impairment. Mauerhan v. Principi, at 444. Factual Background Service connection for panic disorder, as secondary to service-connected sinusitis, was granted in an October 2002 rating decision. An initial rating of 30 percent was assigned, effective January 29, 2002. The veteran's claim for an increased rating was received in January 2006. The veteran has undergone treatment for his panic disorder and depression with a private psychologist. In February 2006, the psychologist noted that the veteran experienced anxiety and panic attacks related to his breathing problems, as well as mood problems. In an October 2006 letter, the psychologist also stated that the veteran had a long history of anxiety and depression with repeated anxiety and panic attacks that, at times, required medical assistance. She also reported that based on the veteran's age, social circumstances, and personality, he was dependent on the social support offered by therapy. The veteran's anxiety/panic attacks manifested after his nose fracture resulted in an inability to pursue his planned career as a CIA agent and police officer. VA outpatient treatment records show that the veteran was noted to be depressed, and that he was receiving treatment with an outside provider. In June 2006, the veteran's VA doctor noted that his depression was leading to loss of appetite and weight loss. In response to his claim for an increased rating, the veteran was provided a VA examination in June 2006. He reported that he had been undergoing private therapy since 2003. The veteran was amiable, well-groomed, with no idiosyncratic movements or tremors. He had no impairment in thought processes and was able to communicate effectively. The veteran reported that until two years ago, he had panic attacks that caused dizziness and fainting. However, due to his medication, he had not had a panic attack in two years, although he did still complain of excessive worrying, depression, and mood lability. He also had complained of sleep impairment, but noted that these had improved with medication. He stated that he had episodic anxiety when his sinuses drained excessively and when he had trouble breathing. He experienced anxiety and worry about eating, and reporting losing 35 lbs. in the last two months. The veteran was noted to have chronic obstructive pulmonary disease (COPD) and coronary artery disease (CAD). He reported that he only left the house approximately two times a month and that he could not completely bathe or dress himself. He relied on his wife to cook, clean, and provide care for him. The examiner noted that the veteran was unable to work due to his panic attacks, worrying, constant blowing of the nose, and other medical problems. The examiner found that there was no delusional content to the veteran's thinking and that the veteran denied experiencing hallucinations. He also denied experiencing inappropriate behaviors and any obsessive, compulsive, or ritualistic behaviors. His speech was normal. The veteran stated that he had fleeting suicidal ideation, especially when he considered how much help he required in performing everyday activities, but that he would never actually kill himself. There was some small amount of memory loss, but the examiner found that for the most part, the veteran's memory functioning was appropriate. His affect was blunted and depressed at times. The diagnoses were panic disorder without agoraphobia, fairly well controlled with medications, and a nonspecified depressive disorder. A GAF score of 47 was assigned. The examiner concluded that the veteran had a strong history of depression, anxiety, and panic attacks, and that his medication and counseling were helping a great deal. He had major medical problems and continued to have excessive worry, especially regarding eating and breathing at the same time. The examiner found that the veteran had symptoms of depression with weight loss, depressed mood, and inability to take care of himself and engage in pleasurable activities. Based on the findings of panic disorder and his sinus condition, the examiner found that they interfered with his social functioning and ability to work in a full time capacity as a partial picture of the medial and physical breakdown of his body. In June 2006, the VA examiner also provided an addendum to the examination report. The examiner stated that the veteran experienced a combination of anxiety and depression, but had not had a panic attack in two years. The examiner further stated that since the veteran had found ways to clear his sinuses, decrease his gagging, and was having less panic attacks, his inability to perform activities was related to his nonservice-connected conditions. In addition, since the veteran's panic disorder was well controlled with medication, a GAF score for that condition alone was 78. While the veteran was noted to be unemployed, the examiner found that because the veteran's panic disorder was controlled, it probably only caused approximately five percent of his unemployability. The examiner concluded that the major part of the veteran's unemployability was related to his nonservice-connected disabilities. Following the issuance of the April 2007 SOC, the veteran's psychologist provided a letter to VA in June 2007. She reiterated that the veteran's anxiety and panic manifested as a result of his inability to procure his desired career, and stated that it affected his work in the field of investigation and correctional facility administration later in life, specifically in the 1980s. At that time, he experienced weekly panic attacks, and required medical treatment. The psychologist found that while working the veteran experienced near continuous panic affecting his ability to function effectively at work. In addition, she stated that during the early 1980s and during the veteran's early retirement, he experienced more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Analysis After review of the medical evidence of record, the Board finds that the veteran's service-connected panic disorder most nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Board notes that in the June 2006 VA examination report, the examiner found that the veteran's panic disorder was well controlled with medication and that he had not experienced a panic attack in two years. He was also found to exhibit most of the criteria associated with the currently assigned 30 percent disability rating, i.e., depressed mood, anxiety, some sleep impairment, and mild memory loss. While the veteran was noted at the June 2006 examination to have a GAF score of 47 and to be unemployable, in the June 2006 addendum report, the examiner clarified that the GAF score for the veteran's panic disorder alone, without consideration of his nonservice-connected depression, was 78, consistent with transient symptoms and slight impairment. In addition, the examiner stated that the veteran's inability to perform activities was due to his nonservice-connected disabilities and that his panic disorder only contributed approximately five percent to the veteran's unemployability. This differentiation by the VA examiner distinguishes this case from the type of scenario contemplated in Mittleider v. West, 11 Vet. App. 181, 182 (1998). In that case, the Court indicated that when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition. Here, the examiner clearly indicated that the veteran's unemployability was largely due to factors other than panic disorder. The Board is also aware that the veteran's private psychologist has stated that the veteran experienced weekly panic attacks while employed in the 1980s and that his panic disorder affected his ability to function at his job, resulting in near-continuous panic. The Board notes that 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. Francisco, supra. Therefore, this evidence regarding the severity of the veteran's panic disorder in the 1980s is no more than minimally probative to the claim, as it does not speak to the current level of disability. With respect to the veteran's current impairment from his panic disorder, the private psychologist has noted that he experiences anxiety and panic attacks related to his breathing problems and that he is dependent on his therapy. However, as noted above, the veteran stated at his June 2006 VA examination that he had not experienced a panic attack in two years and that his symptoms had improved with medication. In addition, the weight loss noticed by the VA physician was attributed to the veteran's nonservice-connected depression. The Board also notes that the veteran's panic disorder has not manifested symptoms associated with an increased rating of 50 percent such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impaired judgment and thinking. While he has manifested some memory impairment and disturbances of mood, the VA examiner in the June 2006 addendum report found that the veteran's inability to perform daily activities was due to his nonservice-connected disabilities and, as noted above, assigned a GAF score of 78 for the panic disorder alone, associated with transient symptoms and slight impairment. In sum, the weight of the evidence is against a finding that there is occupational and social impairment with reduced reliability and productivity due to the veteran's service- connected panic disorder. Therefore, the veteran's panic disorder most nearly approximates the criteria contemplated by the currently assigned 30 percent disability rating. Finally, the veteran has submitted no evidence showing that this disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has considered reasonable doubt and all potentially applicable provisions of 38 C.F.R. Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign higher disability evaluation. ORDER Entitlement to a rating in excess of 30 percent for a panic disorder is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs