Citation Nr: 1306019 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 12-22 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a rating in excess of 30 percent for service-connected anxiety disorder with posttraumatic stress disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from July 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 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 service-connected anxiety disorder with posttraumatic stress disorder (PTSD) is manifested by 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 work stress as a result of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood; and a GAF score within the 61-70 range, indicating mild symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for service-connected anxiety disorder with PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in December 2011, prior to the initial unfavorable AOJ decision issued in February 2012. The Board observes that the pre-adjudicatory VCAA notice, informed the Veteran that he must show that his service-connected disability had increased in severity, how VA would assist him in developing his claims, and his and VA's obligations in providing such evidence for consideration. This letter also advised him of the evidence necessary to substantiate disability ratings and effective dates generally. Therefore, the Board finds that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with VA examinations. The Veteran's VA treatment records and the reports of December 2011 and July 2012 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, each examiner reviewed the claims file, documented the Veteran's subjective complaints and medical history, and evaluated the Veteran. Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating. Nothing suggests that the examiners documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology; therefore, the Board finds the VA examination reports in this case adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159 (c)(4). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath, the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected anxiety disorder with PTSD. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board also notes that the Court has held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); see Fenderson v. West, 12 Vet. App. 119 (1999). Thus, the Board has considered the propriety of staged ratings in assessing the Veteran's service-connected disability. The Veteran's service-connected anxiety disorder with PTSD is assigned a 30 percent rating evaluation, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). He contends that his symptomatology is of such a severity to warrant a higher rating. The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "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 only 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 § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The criteria for a 30 percent rating are: 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). The criteria for a 50 percent rating are: 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. The criteria for a 70 percent rating are: 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. The criteria for a 100 percent rating are: 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. 38 C.F.R. § 4.130, Diagnostic Code 9400. The evidence relevant to the appeal period includes two VA examinations and records of VA mental health treatment. At the December 2011 VA examination, the examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motiviation and mood. He indicated that the Veteran had been experiencing more depression and anxiety in the last year due to added stress involving his granddaughter, but did not document an overall increase in severity of disability. He stated that, essentially, there was no change in behavior from that documented at the previous VA examination in October 2010. He concluded that the Veteran exhibited 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 work stress. The GAF score assigned was 63. The Board observes that the July 2012 VA examiner reported no symptoms not previously documented in December 2011 and so no change in severity. The GAF score again was 63. VA treatment records reflect that the Veteran receives mental health treatment approximately every two months. His symptoms as documented by his psychologist are consistent with those indicated by VA examination findings. The Board notes that GAF scores reported in treatment records are consistently within the 61-70 range. A GAF score of 61-70 contemplates some 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. See DSM-IV at 44-47. While a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the Veteran's disorder. See 38 C.F.R. § 4.126(a). Based on the above, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's service-connected anxiety disorder with PTSD. The evidence does not show occupational and social impairment comparable to reduced reliability and productivity or comparable to typical symptoms of a 50 percent rating, such as circumstantial speech, panic attacks more than once a week, or impaired understanding of complex commands, judgment, and thinking. Although the Veteran has a difficult relationship with his granddaughter, in VA treatment records he has indicated that he has a good relationship with his spouse of 71 years. Additionally, their daughter lives with them, assisting with yard and house work and generally watching out for them. The Veteran has also reported participation in several church activities. Treatment notes reflect that he has decreased his activity in the yard, but because of his physical limitations. In light of these facts, the Board determines that the Veteran's symptoms do not more closely approximate a rating in excess of 30 percent. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2012). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. Service-connected anxiety disorder with PTSD is evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). The Veteran's service-connected psychiatric disability is manifested 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 work stress as a result of depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the 30 percent disability rating assigned throughout the appeal period. Evaluations in excess of that assigned are provided for functional impairment that has not been demonstrated in this case. The criteria for the 30 percent rating assigned by the RO reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required. See 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012); see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record. The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, the Veteran is not working, having retired after working for 36 years in a textile factory. The Veteran has not contended, nor does the evidence suggest that the Veteran would be unable to obtain or maintain substantially gainful employment due solely to service-connected disability. Therefore, the Board determines that further consideration of TDIU is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the competent evidence does not support a higher rating for service-connected anxiety disorder with PTSD, the preponderance of the evidence is against the Veteran's claim for a rating in excess of the 30 percent assigned for this disability. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and his service connection claims must be denied. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. ORDER Entitlement to a rating in excess of 30 percent for service-connected anxiety disorder with PTSD is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs