Citation Nr: 1307416 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-35 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 30 percent for anxiety reaction with somatization features. 2. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Ellen Donati, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1977 to March 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, continued a 30 percent evaluation for the service-connected anxiety reaction. In May 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. The Veteran has recently submitted additional records of VA and private treatment, subsequent to the issuance of the July 2010 statement of the case (SOC). This evidence was accompanied by a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ). Thus, the Board will consider the claim on the merits. See 38 C.F.R. § 20.1304 (2012). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's anxiety reaction with somatization features has most nearly approximated deficiencies in most areas of work, school, family relationships, thinking, judgment and mood without total occupational and social impairment. CONCLUSION OF LAW The criteria for 70 percent disability rating, but not higher, for anxiety reaction with somatization features have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for an anxiety reaction was granted in a July 1980 rating decision with an initial noncompensable evaluation assigned effective April 3, 1980. The April 2009 rating decision on appeal continued the current 30 percent evaluation for the disability. The Veteran contends that an increased rating is warranted for his anxiety reaction with somatization features as it is productive of daily panic attacks that have caused isolation and paranoia. 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 in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's anxiety reaction is currently rated as 30 percent disabling under Diagnostic Code 9400, pertaining to generalized anxiety disorder, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an 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, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent rating is warranted for 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. Id. A maximum 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. After review of the evidence of record, the Board finds that an increased 70 percent rating is warranted for the service-connected anxiety reaction throughout the claims period. The criteria for a 70 percent rating for a psychiatric disability are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). The Veteran's anxiety reaction has demonstrated daily panic attacks, depression, and serious anxiety that have caused social and occupational impairment. Furthermore, treatment records from the Memphis and Milwaukee VA Medical Centers (VAMCs) document findings of a dysphoric and depressed mood, and the Veteran has reported having problems with his wife throughout the claims period. Upon VA examination in January 2009, the Veteran was also found to have limited judgment and insight and the VA examiner specifically found that the Veteran met the criteria for a 70 percent evaluation under the general rating formula. With respect to the schedular criteria, the service-connected anxiety reaction has manifested several of the specific criteria contemplated by a 70 percent evaluation, including panic attacks occurring multiple times per day affecting the ability to function independently, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain relationships. In addition, the Veteran's Global Assessment of Functioning (GAF) scores have overall established the presence of serious PTSD symptoms. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2009)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The Veteran's GAF scales from VA treatment and upon VA examination in January 2009 and private examination in March 2012 have ranged from 60 to 48, consistent with moderate to serious symptoms. The Veteran's social and occupational impairment due to his anxiety reaction is also consistent with an increased 70 percent evaluation. The Veteran has remained married throughout the claims period, but VA treatment records document periods of trouble in the Veteran's marriage and episodes of domestic violence due to his anger and irritability. The January 2009 VA and March 2012 private examination reports both show that the Veteran's days were spent at home and he reported having few friends and social activities other than attending church. The Veteran also testified in May 2012 that he rarely went out of the house and could not be around crowds due to paranoia and anxiety from his daily panic attacks. The service-connected anxiety reaction has also resulted in occupational impairment; the Veteran testified that his past work included a security guard, forklift operator, and general laborer, but he was unable to continue working due to his anxiety and panic attacks. Although the January 2009 and March 2012 examiners noted some inconsistencies in the Veteran's reports of unemployability due solely to psychiatric symptoms, the Veteran's ability to work is clearly impaired by his anxiety reaction and multiple daily panic attacks. The Veteran's service-connected anxiety reaction manifests serious symptoms with deficiencies in the areas of work, family relations, judgment, and mood and most nearly approximates a 70 percent rating throughout the claims period. The Board has considered whether an increased 100 percent evaluation is warranted. There is some evidence of the specific criteria contemplated by a total evaluation under the general rating formula-the Veteran has reported suicidal thoughts and auditory hallucinations. With respect to the Veteran's suicidal ideation, the Board notes that he has always denied any actual suicidal intent, referencing his own son's suicide as a reason to not take his own life. Therefore, the record does not establish a persistent danger that the Veteran would hurt himself. Furthermore, while the Veteran has complained of auditory hallucinations to his VA psychiatric and social worker since September 2011, the March 2012 private examiner clarified that the Veteran was not hearing voices, rather he was experiencing a ringing in his head. The January 2009 VA examiner similarly found that the Veteran's "voices," were in fact self-talk and not indicative of true hallucinations. Thus, the Veteran has not manifested persistent delusions or hallucinations or any of the other specific criteria contemplated by a 100 percent evaluation. The Veteran is also entitled to a 100 percent rating if his service-connected PTSD causes total occupational and social impairment, regardless of whether he has some, all, or none of the symptoms listed in the rating formula, and regardless of whether his symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In this case, it is clear that the Veteran's anxiety reaction has not resulted in total impairment. While the Veteran has had a strained relationship with his wife, they have remained married and he has a good relationship with his son and siblings. Additionally, although the Veteran testified in May 2012 that he was unable to work due to his psychiatric symptoms, VA treatment records document other disabilities that have impacted his employment, to include low back and shoulder pain. The January 2009 and March 2012 examiners both noted the inconsistencies in the Veteran's statements regarding his employment, and found that his reports of total impairment due to anxiety may not be entirely reliable. The Veteran's anxiety reaction is therefore productive of some social and occupational impairment, but this impairment does not most nearly approximate total. In sum, the criteria for an increased rating of 70 percent for the Veteran's anxiety reaction with somatization features have been met. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for a schedular rating in excess of 70 percent. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's anxiety reaction is manifested by symptoms such as panic attacks, depression, and social and occupational impairment. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. 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, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a December 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the December 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided a proper VA examination in January 2009 in response to his claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a 70 percent rating, but not higher, for anxiety reaction with somatization features is granted. REMAND A claim for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. The record contains evidence that the Veteran's service-connected psychiatric disorder has significantly impaired his employment. During the May 2012 hearing before the Board, the Veteran testified that he had not worked since April 2008 due to anxiety symptoms such as concentration problems and daily panic attacks. While a claim for TDIU is part of the Veteran's claim for an increased rating currently on appeal, the RO has not explicitly adjudicated the current claim for entitlement to TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice regarding the claim for TDIU. Also request that he submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Adjudicate the issue of entitlement to TDIU. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs