Citation Nr: 1237144 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-03 640A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial evaluation in excess of 10 percent disabling for an anxiety disorder, alternatively diagnosed as post-traumatic stress disorder (PTSD) and/or generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1942 to January 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Hartford, Connecticut that granted service connection for an anxiety disorder ("posttraumatic stress disorder") and assigned a 10 percent disability rating, effective December 5, 2005. The Board notes that the August 2008 RO decision granted service connection for PTSD based, in part, on a June 2008 VA examination report that reflects a diagnosis of generalized anxiety disorder and the examiner's opinion etiologically linking it to the Veteran's service. Based thereon, and in light of the medical evidence of record addressing the Veteran's anxiety disorder, the Board has recharactizerized the issue on appeal as for a higher initial rating for a service-connected anxiety disorder. In June 2012, the Veteran testified at a Travel Board hearing at the RO in Hartford, Connecticut before the under signed Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's anxiety disorder is manifested by symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, including nightmares, intrusive thoughts, and irritability (but without periods of violence). CONCLUSION OF LAW The criteria for an evaluation of 30 percent disabling for an anxiety disorder have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for a higher initial rating for his service-connected anxiety disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board notes that where service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to 38 U.S.C.A. § 5103(a) notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's VA treatment records and private treatment records are all in the claims file. The Veteran has not referenced any outstanding records for VA to obtain relating to his claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The Veteran was provided with VA examinations relating to his anxiety disorder in June 2008 and September 2011. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's anxiety disorder since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports are thorough, complete, and adequate upon which to base a decision with regard to the Veteran's claim. The VA examination reports reflect that the examiners personally reviewed the claims file, examined the Veteran, and provided sufficient detail to rate the Veteran under the applicable diagnostic criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537. II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b) (West 2002). Where, as in the instant case, an appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's anxiety disorder is currently assigned a disability rating of 10 percent disabling, effective December 5, 2005. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). The Veteran seeks a higher initial rating. The Veteran's anxiety disorder is rated under Diagnostic Code 9411, which provides for ratings as follows: 10 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 30 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, and mild memory loss (such as forgetting names, directions, recent events). 50 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 effective work and social relationships. 70 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 that 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130 (2012). The use of the phrase "such symptoms as" followed by a list of examples provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (GAF) Scale is used to report a clinician's judgment of an individual's overall level of functioning. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) at 44 (1994). A score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally functioning pretty well and having some meaningful interpersonal relationships. Id. at 46. A score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. at 47. A score of 41 to 50 reflects serious symptoms, such as suicidal ideation or serious impairment in social or occupational functioning (e.g., no friends or unable to keep a job). The Veteran's VA treatment records dated prior to 2007 are negative for any psychological complaints. See also Statement in Lieu of Form 646, November 2011. A May 2007 evaluation from the Vet Center reflects that the Veteran reported experiencing sleep disturbances, including nightmares of his war experiences (World War II), an exaggerated startle response, intrusive thoughts and memories about the war daily, irritability, hypervigilance (noted as keeping track of people and what they are up to), some social isolation, except for his relationship with his wife, his children, a few acquaintances, and a few fellow Navy Veterans, arousal upon remembering or recounting traumatic events, avoidance of shows about war footage or talking about the traumas, but at the same time, that the Veteran has a preoccupation with World War II events. The clinician recorded a diagnosis of PTSD, chronic and moderate to severe. A May 2007 VA treatment record prepared by Dr. L. reflects that the Veteran had no prior psychiatric treatment. The Veteran reported experiencing sleep disturbances, including nightmares of his war experiences, intrusive thoughts of war, and a depressed mood, but denied avoidance behavior. Dr. L. noted that the Veteran's wife was sick and on dialysis, and that the Veteran was her primary caregiver. Dr. L. further noted the Veteran's mood was "stressed," and his affect was constricted, anxious, slightly dysphoric. His speech was intact, fluent, and normal, thought process was linear and logical, insight and judgment were fair, and he denied suicidal or homicidal ideation. A diagnosis of rule-out PTSD, depression not otherwise specified, and a GAF score of 58, were recorded. At the same time, Dr. L. noted a plan to "continue to explore extent of possible PTSD" and made a notation about medication for anxiety. A later August 2007 VA treatment record prepared by Dr. L. reflects diagnosed PTSD (albeit the record also notes that the Veteran lost his daughter and that his wife was still sick). An October 2007 record from Dr. L. reflects she noted that the Veteran reported that he was unmotivated, his mood was depressed, he experienced sleep disturbance, his affect was constricted, anxious, slightly dysphoric, and mood congruent. His thought process was linear and logical, insight and judgment were fair, and he denied suicidal or homicidal ideation, hallucinations or delusions. Subsequent VA treatment records reflect that the Veteran has continued to be followed by Dr. L. at the VA medical center for his anxiety disorder, consistent with the Veteran's testimony at the Board hearing. See, e.g., VA Treatment Records, April 2009, May 2009, June 2009. A June 2008 VA examination report reflects that the Veteran reported his history of his ship being torpedoed and being set adrift for eight days in a small lifeboat. The examiner noted that a prominent feature of the Veteran's trauma was that he fell asleep on the lifeboat and when he awoke, they had been cut loose by Merchant Marines who were in other life boats. The examiner noted that the Veteran's records reflected that he reported lifelong sleep disturbances relating to his experiences, as well as anxiety and nightmares. Some anxiety and mood disturbance relating to his wife's illness was also noted in the Veteran's medical history. The Veteran's recount of his war experiences were noted as very detailed and tangential at times. The Veteran reported intrusive thoughts every day and in his dreams, and that he never went to bed without thinking about his war experiences. He denied, however, any distress at reminders of the trauma or avoidance of reminders, such as movies. The Veteran reported a history of irritability, but denied any violence except for one incident 20 years ago. He reported feeling anxious most of the day, and pacing. The Veteran denied any loss of interest in activities, and expressed enthusiasm for fishing, cooking, golfing, and cribbage. The examiner noted that the Veteran's affect was euthymic, his speech was detailed and elaborate (overly), his thought process was logical and concrete, he denied suicidal or homicidal thoughts, and there was no evidence of hallucinations. Cognition was noted as grossly intact, and his judgment was good. The examiner recorded a diagnosis of generalized anxiety disorder and a GAF score of 60 to 65, and opined that his anxiety disorder was at least as likely as not related to service. The examiner noted that the Veteran's symptoms had not caused any significant impairment in the Veteran's social or occupational functioning. A September 2011 VA examination report reflects that the examiner recorded a diagnosis of an anxiety disorder, not otherwise specified, and a GAF score of 75. The examiner checked the box indicating that the Veteran's anxiety disorder was manifested by symptoms meeting the 10 percent rating criteria, i.e., "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication." The examiner noted that since the last VA examination, the Veteran's wife had passed away, but that he managed to stay busy with chores around the house, woodworking, and communicating with friends and family. The examiner noted that the Veteran continued to be followed by Dr. L. at the VA medical center, and that he was currently prescribed citalopram for his mood and trazedone for sleep. The Veteran's symptoms were noted as including anxiety, suspiciousness, and chronic sleep impairment. The examiner opined that the Veteran's symptoms were unchanged since the last VA examination, and that his most significant symptoms continued to be his sleep impairment. In light of the above symptomatology reported by the Veteran and noted by clinicians on mental status examination, particularly the Veteran's depressed mood, anxiety, and chronic sleep impairment, the Board finds that the Veteran's overall disability picture due to his anxiety disorder more nearly approximates the criteria for a higher, 30 percent disability rating. In assigning this rating, the Board notes that the criteria for the next higher, 50 percent rating have certainly not been met. As shown above, there is no evidence of 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 relating to the Veteran's anxiety, impaired judgment, or impaired abstract thinking. While the Board acknowledges that the Veteran reported some degree of isolation, at the same time, the Board notes that the Veteran remained married to his wife of over 60 years into the period on appeal, and was her caregiver, until she recently passed away, that he reported to clinicians maintaining relationships with his children, that he has some acquaintances, and that he socializes with some other Navy veterans, which is also corroborated by the lay statements submitted by him. Therefore, the Board does not find that the Veteran's disorder is manifested by the degree of occupational and social impairment with reduced reliability and productivity due that is contemplated by a 50 percent rating criteria. The Board acknowledges that the Veteran's GAF scores during this period have been noted as between 55 and 75, which indicate mild to moderate symptoms according to the DSM-IV, which the Board finds is consistent with the 30 percent rating assigned herein. In any event, the Board ultimately places more probative weight on the more detailed narrative findings noted above. The Board has taken into serious account all of the lay statements and testimony given by the Veteran, as well as all of the lay statements submitted by the Veteran (from others) in support of his claim. The Board acknowledges that the Veteran reports dwelling on his experiences in World War II, including his ships that sunk and being set adrift at sea for days without food or water, and that he has difficulty falling sleeping and nightmares as a result. See, e.g., Transcript at 4. The Board notes that the higher, 30 percent rating granted herein specifically takes into account the Veteran's sleep difficulties. With regard to the other lay statements submitted in December 2005, the Board acknowledges that J.E., a fellow veteran of the naval Armed Guard, wrote that the Veteran experienced nervousness, and the Board has taken into account the Veteran's anxiety in assigning the higher 30 percent rating. The Board also acknowledges other statements from the Veteran's buddies, neighbor, and children attesting to his good character. In reaching the above conclusions, the Board also has considered whether the Veteran is entitled to a greater level of compensation for his anxiety disorder on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, 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 Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's anxiety disorder is inadequate. A comparison between the level of severity and symptomatology of the Veteran's anxiety disorder with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. In summary, the Board concludes that the preponderance of the evidence is in favor of granting a 30 percent rating for the Veteran's anxiety disorder. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). ORDER Entitlement to an evaluation of 30 percent disabling for service-connected anxiety disorder, alternatively diagnosed as PTSD and/or generalized anxiety disorder, is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs