Citation Nr: 1007745 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 08-24 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability evaluation higher than 30 percent for service-connected generalized anxiety disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his former spouse ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1966. This matter arises before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, the Veteran presented hearing testimony concerning the issue on appeal before the undersigned at a Travel Board hearing held at the RO. The transcript of the hearing is associated with the claims file. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture associated with his service-connected generalized anxiety disorder more closely approximates occupational and social impairment with reduced reliability and productivity such that a 50 percent schedular rating under Diagnostic Code 9400 is warranted for the entire claim/appeal period. CONCLUSION OF LAW The criteria for an initial evaluation of 50 percent for the Veteran's service-connected generalized anxiety disorder have been approximated for the entire claim/appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9400 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice. The Board initially notes that the Veteran is challenging the initial rating assigned for his service-connected generalized anxiety disorder following the grant of service connection in the November 2007 rating decision. The Board notes that the Federal Circuit has held that once service connection is granted, the claim has been substantiated and additional notice is not required. Furthermore, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also Sutton v. Nicholson, 20 Vet. App. 419 (2006). Notwithstanding the above, the Board observes that the RO advised the Veteran how VA determines the disability rating and included a thorough description of the types of information and evidence that the Veteran may provide VA in support of the assignment of a disability rating once service connection has been established in the August 2007 VCAA notice letter, which was issued in connection with his application to reopen a previously denied service connection claim for a psychiatric disorder. Also, a subsequent June 2008 notice letter included the rating criteria pertinent to his claimed psychiatric disability and again informed the Veteran of the information and evidence that he should provide in support of his claim seeking a higher disability rating. Furthermore, the Veteran has been provided with ample opportunity to submit evidence and argument in support of his claim and to participate effectively in the processing of his claim for a higher initial rating during the course of this appeal. As stated above, neither the Veteran nor his representative has alleged any prejudice with respect to the notice received for the initial rating claim during the course of this appeal. Moreover, the record reflects that the Veteran has been provided with a copy of the above rating decision, and the July 2008 SOC, which cumulatively included a discussion of the facts of the claim, pertinent laws and regulations, notification of the bases of the decision, and a summary of the evidence considered to reach the decision. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with a mental disorders examination in connection with his claim in October 2007. The examination report has been reviewed and includes all relevant findings. The October 2007 VA mental disorders examiner also confirmed review of the claims folder prior to the examination in the report. While the Board notes that the examination report is nearly two and a half years old, neither the Veteran nor his representative has indicated that the Veteran's condition has worsened since the October 2007 psychiatric examination or that the findings contained in the report do not accurately reflect the current severity of the Veteran's psychiatric disability. Indeed, the psychiatric symptomatology described by the Veteran at the August 2009 Board hearing is similar to the symptomatology articulated at the October 2007 mental disorders examination. Thus, the Board finds that the examination report is adequate for rating purposes in this case. Also, VA treatment records adequately identified as relevant to the Veteran's claim have been obtained and are associated with the claims folder. The Veteran has denied private psychiatric treatment. See August 2009 Travel Board hearing transcript, p. 5. The Board notes that the Veteran reported at the Travel Board hearing that he continued to receive treatment periodically for his psychiatric disability through the VA in North Little Rock; however, the only change pertaining to his psychiatric treatment since approximately October 2007 was that his psychiatric medications had changed. See August 2009 Travel Board hearing transcript, p. 14-15, 17. Thus, the Board is satisfied that all relevant VA treatment records are contained in the claims folder and a remand to obtain additional VA treatment records is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540 (1991) (holding that a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein. In view of the foregoing, the Board will proceed with appellate review. II. Facts and Analysis The Veteran seeks entitlement to an initial evaluation higher than 30 percent for his service-connected generalized anxiety disorder. The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved and contemplates the assignment of staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that the decision as to which diagnostic code should be applied in a given case is for the RO and the Board. See Bierman v. Brown, 6 Vet. App. 125 (1994); Butts v. Brown, 5 Vet. App. 532 (1993) (en banc). However, the rationale for selecting a specific diagnostic code must be explained. Lendenmann v. Principi, 3 Vet. App. 345 (1992); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Initially, the Board observes that the Veteran is currently assigned a 30 percent disability evaluation under 38 C.F.R. § 4.130, Diagnostic Code 9413 for anxiety disorder, not otherwise specified. However, the Veteran is service- connected for the diagnosis of generalized anxiety disorder. Thus, the Veteran's disability is more appropriately evaluated under Diagnostic Code 9400, which is designated for generalized anxiety disorder. Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating reflects evidence of 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400 (2009). A 50 percent rating is prescribed when there is evidence 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 complete 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 rating is warranted when there is evidence of 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence 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; and memory loss for names of close relatives, own occupation, or own name. Id. After careful review of the record, the Board resolves reasonable doubt in the Veteran's favor and finds that the disability picture associated with his service-connected generalized anxiety disorder more closely approximates occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology such that the next higher rating of 50 percent is warranted for the entire appeal period for reasons explained below. The Board recognizes that the Veteran does not demonstrate much of the symptomatology contemplated by the schedular criteria for a 50 percent rating. Indeed, there is no evidence showing that the Veteran has demonstrated, at any time relevant to the claim/appeal period, the following symptomatology: flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; or impaired abstract thinking. Specifically, the October 2007 VA mental disorders examiner noted that the Veteran's affect was appropriate to content, his speech was within normal limits with regard to rate and rhythm, and his thought processes and associations were logical and tight without loosening of associations or confusion. The examiner also described the Veteran's memory as "grossly intact" and his insight and judgment as "adequate." It is further observed that VA treatment records relevant to the claim/appeal period contain no findings contrary to those articulated in the October 2007 VA mental disorders examination report. However, the Board notes that the Veteran has competently reported that he experiences panic attacks more than once a week due to his service-connected psychiatric disability. Recently, at the Board hearing, he stated that he had panic attacks almost every day. See August 2009 Travel Board hearing transcript, p. 17-18. Also, at the earlier October 2007 VA mental disorders examination, the Veteran told the examiner that he had anxiety attacks approximately three days per week with the episodes being moderate in severity at their worst. The Board finds the Veteran's competent report regarding the frequency and severity of his panic attacks due to his generalized anxiety disorder credible and affords his statements significant probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the evidence of record shows that the Veteran frequently experiences disturbances of motivation and mood due to his service-connected psychiatric disability. Indeed, the Veteran's treating psychiatric social worker (R.R.G., LMSW) wrote in a December 2007 letter that sitting in the waiting room at the mental health clinic was anxiety provoking and caused significant discomfort to the Veteran. It is also noted that the October 2007 mental disorders examiner specifically wrote that the Veteran displayed some mild anxiety and dysphoria and his mood was described as euthymic with some anxiety and depression noted. Further, the Veteran was described by VA mental health examiners as "anxious" in treatment records relevant to the claim/appeal period. See e.g., VA treatment record dated October 25, 2006. The evidence of record further reveals that the Veteran has difficulty in establishing and maintaining effective social relationships. (It is notable that the Veteran used to work as a truck driver for many years but reported at the October 2007 mental disorders examination that he has not worked since 1995 and stated that he underwent heart surgery. Thus, there is no indication of difficulty establishing and maintaining effective work relationships during the time relevant to this claim/appeal.) At the Travel Board hearing, the Veteran reported that he allowed his children to visit with him on some days but other days he did not want them there. He later explained that his tendency to isolate himself due to his service-connected psychiatric disability caused him to have a strained relationship with his children. See August 2009 Travel Board transcript, p. 11, 19. The record also shows that the Veteran is divorced from his first wife. See July 1989 Divorce Decree. The Veteran further reported, at the October 2007 mental disorders examination, that he did not visit with anyone and primarily stayed in the house. His treating VA psychiatric social worker similarly commented in the December 2007 letter that the Veteran avoided almost all social situations other than small family gatherings due to anxiety associated with his generalized anxiety disorder. Moreover, the Board notes that the October 2007 VA mental disorders examiner assigned a Global Assessment of Functioning (GAF) score of 53 after examination and interview of the Veteran and review of the claims folder. The GAF is a scale reflecting the "'psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness'" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). GAF scores ranging from 51 to 60 reflect 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). The Board finds that the GAF score assigned by the VA mental disorders examiner indicating a moderate level of impairment due to psychiatric disability is consistent with the disability picture as shown by the record and supports the assignment of a 50 percent disability rating for the Veteran's psychiatric disability. Thus, for the foregoing reasons, the Board concludes that evidence for and against the assignment of an increased rating of 50 for generalized anxiety disorder is at least in approximate balance and resolves reasonable doubt in favor of the Veteran in finding that his service-connected psychiatric disability more closely approximates occupational and social impairment with reduced reliability and productivity for the entire appeal period. 38 C.F.R. §§ 4.3, 4.7. Thus, no staged rating is warranted. In making the above determination, the Board has considered whether the Veteran is entitled to the next higher rating of 70 percent for his service-connected generalized anxiety disorder, as he contends. However, the disability picture as shown by the evidence does not support the assignment of a 70 percent rating. While the record shows that the Veteran has a history of suicidal ideation in the past and has difficulty in adapting to stressful circumstances to some degree as evidence by his frequent anxiety, there is no indication of suicidal ideation at any time during the claim/appeal period as the Veteran consistently denied having current suicidal ideation. In addition, while the Veteran frequently experiences anxiety or depression, it is not shown to affect his ability to function independently, appropriately, and effectively. Although the Veteran has some difficulty in establishing and maintaining effective social relationships, his continued relationship, albeit strained, with his children as well as his good relationship with his former wife show that he does not have an outright inability to establish and maintain effective relationships. Further, there is no indication of impaired impulse control, neglect of personal appearance and hygiene, obsessional rituals which interfere with routine activities, speech that is intermittently illogical, obscure, or irrelevant, or spatial disorientation at any time relevant to the claim/appeal period. To the extent that the Veteran suggested at the Board hearing that he had, at times, become homicidal due to traffic and had to pull off of the highway during the time that he drove a truck, the Board notes that treatment records relevant to that period do not support the Veteran's assertion and, instead, show that he consistently denied homicidal ideation. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, after careful review of the available diagnostic codes and the evidence of record, the Board finds there are no other codes that provide a basis to assign a higher schedular evaluation for the Veteran's claimed psychiatric disability. The Board has further considered whether the Veteran's generalized anxiety disorder warrants referral for consideration of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b); see Barringer v. Peake, 22 Vet. App. 242 (2008). However, after review of the record, the Board finds that any limitations on the Veteran's employability due to his service-connected psychiatric disability have been contemplated in the currently assigned 50 percent disability rating under DC 9400. The evidence does not reflect that the Veteran's claimed disability has necessitated any frequent periods of hospitalization or caused marked interference with employment at any time relevant to the claim/appeal period. The record does not show an exceptional or unusual disability picture not contemplated by the regular schedular standards that would warrant consideration of the assignment of an extraschedular rating. ORDER Entitlement to an initial disability evaluation of 50 percent for service-connected generalized anxiety disorder is granted for the entire claim/appeal period, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs