Citation Nr: 1300906 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 03-30 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating higher than 10 percent for service-connected anxiety reaction. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran now resides in Indiana, so the matter is now handled by the RO in Indianapolis, Indiana. In an October 2004 rating decision, the RO granted an increased evaluation of 10 percent for anxiety reaction, effective April 2002. Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation. As a result, he is presumed to be seeking the maximum possible evaluation. The issue remains on appeal, as the Veteran has not indicated satisfaction with the 10 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993). The Board notes that this issue (as well as other issues) was the subject of a prior October 2006 Board decision; however, an August 2008 United States Court of Appeals for Veterans Clams (Court) decision, implementing a July 2008 Joint Motion for Remand (JMR), vacated the part of the October 2006 Board decision that denied an increased rating for the Veteran's service-connected anxiety reaction. In October 2009, the Board denied the Veteran's claim for an increased rating and the Veteran again appealed to the Court. The Court granted a JMR in November 2010, and in May 2011 and June 2012, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that entitlement to a total disability rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Board notes that a June 2005 rating decision denied the Veteran entitlement to TDIU. Therefore, the Board does not need to address this issue. FINDING OF FACT The Veteran's service-connected anxiety reaction is controlled by continuous medication and is not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment or mild memory loss. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for service-connected anxiety reaction are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4 .14, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased disability rating, the VCAA requirement is generic notice, that is, namely, evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2002 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claims. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). Additional letters were sent in October 2003, February 2006, and April 2006. The Veteran's claim was adjudicated subsequently in a September 2012 Supplemental Statement of the Case. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are private medical records, Social Security records, and post-service VA examination and treatment records. Virtual VA records have also been reviewed. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to a Rating Higher Than 10 Percent for Service-Connected Anxiety Reaction Service connection for anxiety reaction was established by a June 1979 rating decision, at which time a noncompensable rating was assigned, effective from February 1979. The Veteran submitted a claim for an increased rating in April 2002. Subsequently, in an October 2004 decision, the RO granted an increased evaluation of 10 for anxiety reaction, effective April 2002. The Veteran asserts his disability is more severe than what is represented by a 10 percent rating. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130, Diagnostic Code 9400, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of the Veteran's occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Id. The Veteran is rated as 10 percent disabled under 38 C.F.R. § 4.130 Diagnostic Code 9400. A 10 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9400. A rating of 30 percent is warranted when 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: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A rating of 50 percent is warranted when 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; and difficulty establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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; and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for 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. Id. The Veteran was afforded a VA examination in June 2002. The Veteran reported flashbacks and bad dreams and that his anxiety "comes and goes" although he reported that he has not been anxious or nervous in quite some time. Examination revealed the Veteran's speech was reduced in quantity, slow in tempo and he spoke in a soft voice. Speech was not spontaneous and eye contact was poor. The Veteran was vague, requiring frequent prodding from the examiner to determine the precise nature of his psychiatric complaints. The Veteran did not complain of any problems with depression or anxiety. The Veteran had some impairment in both short term and long-term memory, insight, and judgment were limited. The Veteran was diagnosed with adjustment disorder with mixed emotional features, and assigned a global assessment of functioning (GAF) score of 75. A GAF rating 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 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 75 indicates symptoms are transient and expectable reactions to psychosocial stressors and there is no more than slight impairment in social or occupational functioning. The examiner noted that the Veteran had some mild anxiety and depression, which appeared to be secondary to his loss of employment and financial problems. In December 2002, the Veteran underwent an examination for Social Security. Examination revealed the Veteran was clean, but his clothing was disheveled and worn. He was oriented to person, place, and situation; however, he incorrectly reported the day and time. Thought processes were coherent but tended to be concrete. Speech was slurred with occasionally irrelevant content. Throughout the session, the Veteran occasionally made comments indicative of his frustration, anger, and resentment over his current situation, i.e. job loss and attempts to gain greater compensation from the Army. The examiner noted that in general, the Veteran appeared to be extremely uncomfortable and anxious. Based on testing results, the examiner opined that the Veteran's level of depression was more than reported. He was diagnosed with major depressive disorder, recurrent, moderate without psychotic features, and anxiety disorder due to general medical conditions. A GAF of 40 was assigned, indicating some impairment in reality testing or communication. A report of VA mental health intake assessment and an addendum, both dated October 2003 are also of record. At that time, the Veteran was diagnosed as "bipolar depressed," with a dependent personality disorder, and a GAF of 52. The Veteran on examination had a withdrawn and depressed affect. He reported having trouble with "spells" in service, and receiving psychiatric treatment in service. He reported that he was very involved with the VFW in his community and went there often, liked to play Rummy and listen to war stories, but had no other social outlets. The Board recognizes that the GAF of 52 reflects a finding of moderate symptoms. Approximately three months later, in January 2004, a VA outpatient note indicates that the Veteran was not depressed or anxious and that he desired to continue his medication. Similarly, in March 2004, he reported that he felt good, and that he was more relaxed. The Veteran also reported that his appetite had improved and that previously he felt depressed but no longer felt that way. The Veteran was afforded a VA examination in March 2005. It was noted that the Veteran has had no psychiatric hospitalization since October 2004 but that he was seeing a psychiatrist and counselor at the VA outpatient center. It was also noted that the Veteran was being treated for symptoms of depression and anxiety with a prescription drug, Celexa. The Veteran reported that his anxiety and depressive symptoms had improved since he began seeing his psychiatrist and therapist. He indicated that he was able to sleep at night and was less irritable and anxious. He also stated that he was more relaxed and his appetite had improved. The Veteran stated that he has not worked since January 2000 due to his hypertension and kidney disease. He reported having symptoms of nightmares, disturbing memories, and hypervigilance. Examination revealed the Veteran reported experiencing the "presence" of people that are not there. He denied suicidal and homicidal ideation. The examiner noted that his ability to maintain personal hygiene and other basic activities of daily living were intact. He was oriented to person, time, and place. Long and short-term memories were intact. The Veteran denied obsessive thoughts, ritualistic behaviors, and compulsive behaviors. He reported panic attacks; however, the examiner noted that he described anxiety symptoms and not a full-blown panic attack. The examiner opined that based on the Veteran's statements and symptoms, his generalized anxiety disorder had not worsened since the last VA examination. A GAF score of 65 was assigned, based on the presence of mild symptoms of anxiety and depression. A GAF of 65 indicates some mild symptoms or some difficulty in social or occupational, but generally functioning pretty well. A VA medical opinion was obtained in December 2005; however, CAVC determined that the opinion is inadequate. See November 2010 JMR. Therefore, it will not be weighed as evidence in this decision. The Veteran was afforded a VA examination in May 2011. The Veteran reported that he was currently receiving effective treatment for his anxiety and depression. The Veteran stated that before medication he would get depressed often, but since taking medication, he has not had a flare-up in a while. He reported that he tries to get along well with people, and that he goes to the VFW and the American Legion to play games. Examination revealed the Veteran was unshaven and mildly unkempt in appearance. Psychomotor activity was unremarkable and attitude was cooperative, friendly, and relaxed. He was oriented to person, time, and place. He denied sleep impairment, hallucinations and obsessive or ritualistic behaviors. He also denied panic attacks, homicidal thoughts, or suicidal thoughts. Remote, recent, and immediate memory were normal. The Veteran was given an Axis I diagnosis of generalized anxiety disorder, by history. A GAF score of 71 was assigned, indicating symptoms are transient and expectable reactions to psychosocial stressors, and there is no more than slight impairment in social or occupational functioning. The examiner noted that the Veteran's GAF scores have ranged from 52 to 72 over the years, with the low rating of 52 assigned in 2003. The examiner noted that less than four months later, the GAF score, assigned by a physician who provided care for the Veteran for a number of years, was assessed as 68 and then raised to 72 over the years. The examiner stated that other providers also assigned GAF ratings of 72 at the times he was seen by each of them in 2007. The examiner noted that the most recent rating by the Veteran's current provider was 68, in April 2011. The examiner then explained that the Veteran's current GAF score (71) assigned during the examination was based on the fact that the Veteran was perfectly oriented with no suicidal or homicidal ideation reported lifetime. He was also pleasant, demonstrated good eye contact, and was fully cooperative. It was noted that he related well during the interview, with no evidence of depression or anxiety reported or observed at the time. Further, he denied any current symptoms of anxiety or depression, crediting his treatment at the VA. The examiner stated that the issue of secondary gain in the form of monetary benefits is obvious and cannot be ignored as a motivational factor in this case. The examiner opined that the Veteran did not meet DSM-IV criteria for a diagnosis of PTSD or any other Axis I mental diagnosis at the time, as he himself denied any symptoms of anxiety of depression for which he has received treatment for in the past. The examiner noted that the GAF score of 40 assigned during the Social Security examination was difficult to comprehend as that is a rating assigned to those who suffer from some impairment in reality testing or communication, according to the DSM-IV. The examiner stated a GAF score of 40 is completely inappropriate for the Veteran based upon his clinic presentation during the examination. An addendum opinion was obtained in August 2012 to reconcile the conflicting medical evidence regarding diagnoses. It was noted that the Veteran was diagnosed during a VA examination in June 2002 with adjustment disorder with mixed emotional features; in December 2002, he was diagnosed with major depressive disorder during a Social Security examination; and in March 2005, he was diagnosed with generalized anxiety disorder during a VA examination. The examiner noted that the diagnoses are not incompatible and are not generally or necessarily permanent conditions. The examiner noted that adjustment disorder is a diagnosis considered to be related to a specific life event or stressor and is by definition time-limited in nature. Major depressive disorder is a highly treatable disorder and typically does improve or remit entirely with time. Generalized anxiety disorder is the most concern for the Veteran and thus was included as a "by history" diagnosis on the Axis I report. The examiner noted that although the Veteran denied current symptoms of anxiety and depression, he has had a long history of anxiety dating back to his military service and symptoms of anxiety were well documented in treatment records. However, again, the examiner noted that the Veteran denied current symptoms, including symptoms of anxiety, depression, and/or PTSD upon very careful clinical examination and specific questioning. The examiner noted that the most likely explanation for the various different diagnoses over the years is the Veteran's primary diagnosis of personality disorder with dependent traits. The Veteran has asserted that his symptoms are more severe than what is represented by a 10 percent rating. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the Board finds that the totality of the evidence indicates a 10 percent rating adequately compensates the Veteran's symptoms. A rating higher than 10 percent is not warranted because the evidence of record does not indicate that the Veteran's overall impairment results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). For example, the Veteran reported getting along with people and attending the VFW and American Legion to play games. Furthermore, there is no evidence of depressed mood or anxiety or chronic sleep impairment. In fact, the Veteran stated during the May 2011 VA examination that since receiving treatment, he has not experienced these symptoms. The Board notes that the Veteran received a low GAF score during the Social Security exam in December 2002, however, the May 2011 VA examiner opined that based on the Veteran's symptoms, the low GAF score was completely inappropriate. Similarly, although the Veteran received a low GAF score in October 2003, the Veteran reported that he was experiencing no anxiety or depression several months later. See January 2004 VA treatment note. Importantly, the Board notes that GAF scores alone are not the basis for determining whether the Veteran is entitled to an increased rating. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the rating for mental disorders is the most appropriate. For all of the foregoing reasons, the Board finds that the Veteran does not meet the criteria to warrant a rating higher than 10 percent for his anxiety reaction, as the totality of evidence does not indicate that his disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment or mild memory loss. Extraschedular Consideration The Board finds that the Veteran's disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his psychiatric disorder is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. ORDER Entitlement to a rating higher than 10 percent for service-connected anxiety reaction is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs