Citation Nr: 1031895 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 08-10 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased disability rating for right hip disability, status post right hip replacement, currently rated as 30 percent disabling. 2. Entitlement to an increased disability rating for anxiety disorder, currently rated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to November 1944. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision by the New York, New York Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO continued a 30 percent rating for right hip disability, continued a 30 percent rating for anxiety disorder, and denied a TDIU. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of an increased rating for right hip disability and of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's anxiety disorder is manifested by irritability, angry outbursts, an aversion affecting bathroom use, and occasional sleep disturbance; without panic attacks or significant impairment of thinking, speech, or judgment. CONCLUSION OF LAW The Veteran's impairment due to his anxiety disorder does not meet the criteria for a disability rating higher than 30 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Codes 9413, 9424 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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, and 5126 (West 2002 & Supp. 2008)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2009). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the RO provided VCAA notice in letters issued in November 2006, January 2007, February 2008, and May 2008. In those letters, the RO advised the Veteran what information and evidence was needed to substantiate claims for service connection, increased ratings, and TDIU ratings. The RO informed the Veteran what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The RO also advised the Veteran how VA determines effective dates. The case was last adjudicated in an October 2009 supplemental statement of the case. With respect to the claim for an increased rating for anxiety disorder, the RO fulfilled the VCAA notice requirements before the July 2007 rating decision denying that claim. VA has made reasonable efforts to obtain records relevant to that claim, including service treatment records, post-service treatment records, and VA examination reports. VA has substantially complied with the notice and assistance requirements; and the Veteran is not prejudiced by a decision on that claim at this time. Anxiety Disorder The RO initially described the Veteran's service-connected mental disorder as a conversion disorder, and more recently has evaluated it as an anxiety disorder. The Veteran contends that a disability rating higher than 30 percent is warranted for the disorder. In March 2006, the Board denied on appeal a rating higher than 30 percent for the Veteran's anxiety disorder. In November 2006, the Veteran submitted a new claim for an increased rating for that disorder. Disability ratings 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 VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the Board will consider whether different ratings are warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The General Rating Formula for Mental Disorders in the VA rating schedule applies to somatoform disorders and anxiety disorders. 38 C.F.R. § 4.130. The Formula is as follows: 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; memory loss for names of close relatives, own occupation, or own name ............................................................... 100 percent 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); inability to establish and maintain effective relationships ................................................ ........... 70 percent 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 ................................................ . 50 percent 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) .......... 30 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication ............................................................... 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication ...................................................... 0 percent Medical records show that in 1972 the Veteran was found to have subdural hematomas. He underwent brain surgeries to address that disorder. The Veteran has reported that he left his employment with a city sanitation department at that time, and that he has not held employment since. The Veteran had VA mental health consultations and treatment in 2000. At that time, the Veteran reported that he was retired and that he lived with his wife. He complained of anxiety, anger, irritability, and episodes of depression. He related a history of nightmares and ruminations about his war experiences. He indicated that he had interrupted sleep. He reported recent mild memory impairment. Mental health clinicians who saw the Veteran found that he was alert and oriented. They described the Veteran's mood as tense and anxious. They found no impairment of cognition, thought processes, or judgment. One clinician provided an impression of possible post-traumatic stress disorder (PTSD). In January 2000, a clinician provided an impression of neurosis, conversion disorder. That examiner assigned a Global Assessment of Functioning (GAF) score of 60. In September 2000, a clinician provided an impression of organic affective syndrome, and assigned a GAF score of 42. That clinician prescribed Paxil. The Veteran had VA mental health consultations in July 2002. He stated that back pain he experienced during service was thought to be psychogenic. He indicated that he believed that his ongoing back pain was due to arthritis. He stated that he sometimes was unable to sleep through the night. He related feeling anxious. He reported having discontinued taking Paxil soon after it was prescribed. The treating clinicians observed no abnormal behavior. The clinicians found that the Veteran seemed distractible, with impaired concentration, and an anxious and labile mood. His memory and thought processes seemed normal, and his judgment, insight, and impulse control were good. There was no evidence of delusions or hallucinations. A clinician provided an impression of neurosis. In a January 2003 physician's questionnaire, a VA clinician indicated that the Veteran had a depressed mood, anxiety, irritability, temper outbursts, and poor impulse control. The clinician stated that the Veteran had difficulty in maintaining relationships due to his irritability, anxiety, and poor impulse control. The clinician reported that the Veteran's anxiety, nightmares, and unwanted thoughts had increased in recent years, and that the manifestations of his mental disorder affected his daily functioning. The clinician assigned a GAF score of 55. In a March 2004 statement, the Veteran's wife wrote that reported that the Veteran felt unable to use a bathroom when any person was within hearing range. She stated that after the Veteran's blood clots and resulting brain surgeries he became irritable and less patient. On VA mental health examination in June 2005, the Veteran reported continuing irritability and social awkwardness. He related an ongoing need to be well away from others when he used a bathroom. He stated that he had frequent arguments with his wife. He reported occasional middle insomnia and some fatigue during the day. The Veteran did not indicate that his psychiatric symptoms had any significant effect on his leaving employment in the 1970s and remaining unemployed since. He indicated that presently he spent most of his time watching television, that he adequately managed dressing, eating, and his finances, and that he and his wife saw their children and grandchildren occasionally. The examining psychologist found that the Veteran was oriented, with appropriate behavior and normal speech and thought process. Memory, attention, concentration, judgment, and insight were all adequate. The Veteran did not report panic attacks, obsessive thoughts, delusions or hallucinations. The examiner opined that anxiety disorder was an appropriate diagnosis, and that the disorder was a continuation of the condition previously diagnosed as conversion disorder. The examiner assigned a GAF score of 63. On VA mental health examination in November 2006, the Veteran reported that he was not currently receiving mental health treatment. He stated that in August 2006 he had a stroke, with resulting visual impairment. He indicated that he continued to avoid using public restrooms when others were present. He reported that he had frequent outbursts of temper, manifested by angry verbal tirades. He reported occasional sleep disturbance and daytime fatigue. He did not report any panic attacks, phobias, obsessive thoughts, or rituals that interfered with functioning. The Veteran and his wife each indicated that there was frequent and serious stress between them. The Veteran reported that he spent time at a senior center, and that he had good relationships with his children and grandchildren. He indicated that he managed his daily activities. The examining psychologist found that the Veteran was oriented and had a mildly dysphoric mood. There was no sign of impairment of communication or thought process. The Veteran did not report delusions, hallucinations, or suicidal or homicidal ideation. Memory was intact, and concentration and attention were adequate. The examiner continued the diagnosis of anxiety disorder, and assigned a GAF score of 62. In a December 2006 statement, the Veteran's wife reported that the Veteran's long history of tension, violence, and unprovoked rage had recently intensified. She related episodes of verbal attacks and physical violence by the Veteran. Also in December 2006, a social worker reported that the Veteran's wife received counseling due to verbal abuse and violence from the Veteran. On VA mental health examination in March 2008, the Veteran reported having ongoing anxiety about bathroom use, and having occasional sleep disturbance caused by dreams. He stated that his relationship with his wife had become calmer recently, and that they had fewer arguments. He reported that he competently managed his daily activities. The examiner noted that the Veteran did not attribute his long term unemployment to his psychiatric symptoms. On examination, the Veteran was oriented and his behavior was appropriate. His mood was mildly irritable. His speech and thought process were normal, and he showed judgment and insight. There was no evidence of delusions or hallucinations. He did not report panic attacks. The examiner concluded that the Veteran's psychiatric symptoms had transient or mild effects on his ability to perform occupational tasks. The examiner assigned a GAF score of 62. In a March 2008 statement, the Veteran's wife asserted that the Veteran was overly obsessed with the management of his bowel movements. She also stated that the Veteran was often disoriented in their home, in the homes of their grown children, and when riding around in their town. She reported that his bathing and clothing changes had become inappropriately infrequent. In a May 2008 statement, the Veteran asserted that his psychiatric disorder was worsening over time. In a March 2010 statement, the Veteran's wife reported that the Veteran had a long history of irritability and anger. She indicated that he was restless at night, and did not sleep well. She stated that he eventually indicated that he had nightmares and flashbacks regarding his war experiences. Also in March 2010, a social worker who had counseled the Veteran stated that the Veteran has PTSD, manifested by anxiety, sleep disturbances, nightmares, irritability, and angry outbursts. The increased rating claim on appeal is the claim that the Veteran filed in November 2006. Evidence regarding the Veteran's mental condition from that time forward indicates irritability and angry outbursts that cause problems in his marriage. He reportedly functions acceptably in other interpersonal interactions and relationships. His episodes of sleep impairment are described as occasional. He does not report panic attacks, and clinicians who have examined him have not found that his psychiatric symptoms affect his speech, thinking, or performance of daily activities. His concerns regarding bathroom use require adjustment of his activities; but he reports making adjustments without seriously curtailing his daily functioning. Overall, the manifestations of the Veteran's anxiety disorder most closely resemble the criteria for a 30 percent rating, the rating currently assigned. He does not have the types and extent of impairment that would warrant an increase to a higher rating. VA may assign an extraschedular rating when there is an exceptional or unusual disability picture that makes it impractical to apply the regular standards of the rating schedule. An exceptional or unusual disability picture is characterized by factors such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The Board does not have the authority to assign an extraschedular rating in the first instance. When an extraschedular rating may be warranted, the Board must refer the case to designated VA officials. Bagwell v. Brown, 9 Vet. App. 377 (1996). In determining whether a case should be referred for extra- schedular consideration under 38 C.F.R. § 3.321(b), the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability; if the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. The Veteran has not had frequent hospitalizations for his psychiatric disability. He has not been employed for many years, but his psychiatric disability does not impair his functioning to an extent that markedly interferes with his capacity for employment. The Board has therefore determined that referral of this case for extra- schedular consideration under 38 C.F.R. § 3.321(b) is not in order. ORDER Entitlement to a disability rating in excess of 30 percent for anxiety disorder is denied. REMAND The Veteran underwent right hip replacement surgery in 1989. Beginning in 1999, the Veteran sought service connection for ongoing right hip disability, claimed as part of a service- connected disability manifested by musculoskeletal pain. In a December 2005 rating decision, the RO granted service connection for chronic right hip pain syndrome, status post right hip replacement. The RO made service connection effective in August 1999, and assigned a disability rating of 30 percent. In December 2006, the Veteran submitted a report from a private orthopedist. The orthopedist discussed problems involving the Veteran's spine, and noted the history of the right hip replacement in the 1980s. In the July 2007 rating decision, the RO continued the 30 percent rating for the right hip disability. The Veteran appealed that decision. The most recent VA medical examination that addressed the condition of the Veteran's right hip was performed in March 2008. At that time, right hip disability and other disabilities of the lower extremities caused the Veteran to use a cane when walking, and limited the distance that he could walk. The right hip had limitation of motion and pain on motion. In April 2010, the Veteran submitted additional medical evidence. He indicated that he had installed a stair lift in his home. In a November 2009 letter, a physician who treats the Veteran wrote that the Veteran uses a wheelchair, and that the functional capacity and motion of the Veteran's hips seemed to be well below 30 percent. The Veteran waived RO consideration of the evidence he submitted. The new evidence, however, includes reports of worsening of right hip disability since the last VA examination. The Board therefore remands the right hip rating issue for a new VA examination to determine the current manifestations and severity of the disability of that hip. After obtaining the report of the VA examination, the RO should review the claim for an increased rating for the right hip disability. VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. 38 C.F.R. § 4.16(a) (2009). Even if service- connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b) (2009). The Veteran has three service-connected disabilities: a right hip disability rated at 30 percent, anxiety disorder rated at 30 percent, and acne rated at 0 percent. The medical examination and subsequent file review may affect the rating assigned for the Veteran's right hip disability, which in turn could affect his TDIU claim. More importantly, the assembled evidence does not directly address the effect of the Veteran's service-connected disabilities on his capacity for employment. A VA physician or psychiatrist should review the Veteran's file and provide an opinion as to the likelihood that the service-connected disabilities make the Veteran unemployable. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Schedule the Veteran for a VA orthopedic examination to determine the current manifestations of disability of the right hip, status post hip replacement. The examiner must be provided with the Veteran's claims file for review. The examiner should report on the current symptoms and manifestations of the Veteran's right hip disability. The report should include the ranges of motion of the hip, in degrees, and should note whether there is pain on motion. The examiner should also note any pain at rest and any weakness in the right hip. The examiner should describe the extent to which right hip disability limits the Veteran's mobility. The examiner is asked to characterize the combined disabling effects of any current weakness, pain, and limitation of motion as "less than moderately severe," "moderately severe," or "markedly severe." 2. After the report of the above examination report is associated with the claims file, review the claim for an increased rating for right hip disability. 3. Thereafter, provide the Veteran's claims file to a VA physician or psychiatrist for review. Ask the reviewing clinician to provide an opinion as to whether it is at least as likely as not that the combined effects of the Veteran's service-connected disabilities (his right hip disability, anxiety disorder, and acne) would make him unable to secure or follow a substantially gainful occupation. 4. After completion of the above, review the expanded record and determine if the Veteran's claim can be granted. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs