Citation Nr: 1121908 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 08-18 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES Entitlement to an increased rating for an anxiety disorder, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A July 1972 rating decision granted service connection and a 30 percent rating for schizophrenic reaction. An April 2008 statement of the case shows that the Veteran's service-connected psychiatric disorder has been reclassified as an anxiety disorder. The Veteran's claim for an increased rating was received on August 28, 2006. The December 2006 rating decision on appeal denied a rating in excess of 30 percent for his service-connected psychiatric disorder. A November 2010 rating decision granted the Veteran a 50 percent rating effective from August 28, 2006. The body of the November 2010 rating decision incorrectly states that the 50 percent rating is effective from August 26, 2008. The Board notes that this is a typographical error and that the last page of the rating decision correctly shows that the 50 percent rating has been awarded effective August 28, 2006. FINDING OF FACT The Veteran's anxiety disorder has resulted in episodes of depression, anxiety, and sleep impairment, but has not resulted in 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for an anxiety disorder are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was met by way of a November 2006 letter from the RO to the Veteran. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. The Veteran's pertinent VA medical records have been obtained. The Veteran testified at a hearing that he receives all of his mental health treatment through VA. The Veteran has been provided VA medical examinations that are adequate for rating purposes. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Therefore, the Board finds that the RO has satisfied the duty to notify and the duty to assist and will proceed to the merits of the Veteran's appeal. Diagnostic Code 9400 provides that a 50 percent rating is warranted where 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 warranted where there is 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. A 100 percent rating is warranted where there is 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. The Board has reviewed the Veteran's VA outpatient records as well as VA examination reports dated in May 2006, October 2006 and November 2010. These records show that the Veteran has more nearly met the criteria for a 50 percent rating than a 70 percent rating. The May 2006 VA examination report shows that the Veteran is logical and goal-directed without any evidence of looseness of associations, flight of ideas or tangentiality. The Veteran has no delusions, paranoid ideation, suicidal ideation or homicidal ideation. The Veteran was noted to have no hallucinations or illusions. He had full affect, intact memory, and his insight and judgment were noted to be fair. On VA examination in October 2006 the Veteran's appearance and hygiene were appropriate and the Veteran's behavior was appropriate. Panic attacks were absent. A history of delusions and hallucinations were noted in the past but none currently. There were no obsessional rituals. When examined in November 2010 the Veteran was neatly groomed, cooperative and he had appropriate eye contact. There was no evidence of hallucinations or delusions. The Veteran's speech was hesitant and his activity level was unremarkable. His mood was dysphoric and his affect was restricted. He denied current homicidal or suicidal ideation. The Veteran reported excessive worry, feeling restless, panic attacks, depressed mood, sleep difficulties and recurrent thoughts about death/dying. It was noted that the Veteran's symptoms require continuous medication and that the Veteran's symptoms caused reduced reliability and productivity in work and other areas. The examiner stated that the Veteran's prognosis for improvement of symptoms and accompanying impairment was considered good. The greater weight of the evidence shows that the Veteran does not exhibit 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Consequently the Veteran is not entitled to a 70 percent for his psychiatric disability. The VA examination reports reveal Global Assessment of Functioning (GAF) scores ranging from 65-70. In assessing the evidence of record, it is important to note that the 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 score of 61-70 is indicated where there are, "[s]ome 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, has some meaningful interpersonal relationships." Id. A September 2009 VA outpatient report noted the Veteran to have a GAF of 55. A score of 51-60 is indicated where there are, "[m]oderate 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. The symptomatology reflected by GAF scores ranging from 55 to 70 are encompassed by the criteria of a 50 percent rating and not a 70 percent rating. Because the Veteran has not met the criteria for a higher rating at any time during the appeal period under consideration he is not entitled to a higher "staged" rating due to significant change in the level of disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Although the Veteran's service-connected disability does cause impairment, such impairment is contemplated by the rating criteria. The record does not show that the Veteran's psychiatric disability has resulted in frequent periods of hospitalization or marked interference with employment. Moreover, the rating criteria implemented for psychiatric disabilities reasonably describes the Veteran's psychiatric disability. Therefore, referral for consideration of an extraschedular rating is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim and that a rating in excess of 50 percent for an anxiety disorder is not warranted. ORDER A rating in excess of 50 percent for an anxiety disorder is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs