Citation Nr: 1310317 Decision Date: 03/27/13 Archive Date: 04/09/13 DOCKET NO. 12-04 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for anxiety disorder, currently evaluated as 50 percent disabling. 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from September 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 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). The issue of entitlement to a 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 evidence of record reflects that the Veteran's anxiety disorder results in occupational and social impairment due to such symptoms as impaired impulse control, difficulty in adapting to stressful circumstances, neglect of personal appearance and hygiene, and an inability to establish and maintain effective relationships; it does not result in gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others. CONCLUSION OF LAW The criteria for a 70 percent evaluation, but not higher, for anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9413 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in January 2011, VA informed the appellant of what evidence was required to substantiate his claim, and his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. The VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds that the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, and witness statements. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. A VA examination was conducted in February 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in this case is more than adequate for the Veteran's increased evaluation claim, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. It provides clinical findings which are pertinent to the criteria applicable for rating the Veteran's disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (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, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are 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. Thus, the Board must consider whether the Veteran is entitled to staged ratings at any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Rating Schedule provides that a 70 percent evaluation for anxiety disorder 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 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. Diagnostic Code 9413. A 100 percent evaluation for anxiety disorder 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; and memory loss for names of close relatives, own occupation, or own name. Diagnostic Code 9413. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The report of the February 2011 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran had not had any psychiatric treatment during the prior year, or since 2005. The Veteran reported problems with anxiety and depression, with the primary difficulty being lack of patience and quickness to anger. Related to this were occasional brief thoughts of service (2-3 times a week), dreams of shooting someone (2-3 times a week) and increased sweating when thinking of the dream. The Veteran indicated that he did not discuss service with most others, but does with some (usually service members). He disliked funerals and graves due to their reminder of Vietnam. He said he had no friends and felt distant in relationships. He had some sense of loss of his future related to his difficulties. He indicated chronic sleep problems which did not negatively impact his long haul truck driving. He had long-standing problems with concentration and was suspicious of government. He was hypervigilant to people approaching him from behind and this affected his sitting at restaurants. He indicated no significant startle response. He indicated chronic anxiety. The Veteran had been married three years, and been with his wife since 2003. He had two children and six stepchildren. He had contact with his two sons, and talked to them weekly or monthly. He had less contact with one of them who had a gambling problem and mismanaged a bar that the Veteran was leasing at the time. He indicated a good relationship with his wife, and indicted that they continued to have arguments and irritability. He said that he no longer went to restaurants and bars. His attitude toward social interactions was generally negative. He said that he became angry easily and viewed other people as "idiots." He had no hobbies. He reported that stubbornness ran in his family. The Veteran noted that over the past two years, his chronic irritability was worse and he blew up more often. He was forgetful and irritable at work, and had poor sleep and elevated anxiety response. He had elevated gambling and more conflict with his siblings, wife and children. On mental examination, the Veteran was clean and casually dressed. His speech was unremarkable, clear and coherent. His affect was full, and his mood was irritable regarding perceive inequities in the disability process. He was twice unable to spell the word "world" backward and indicated he forgot items as soon as he put them down. He was oriented to person, time and place. Thought process and content were unremarkable. He had no delusions, understood the outcome of behavior, and understood that he had a problem. He had sleep impairment in terms of initiating and maintaining sleep. He had no hallucinations. He had inappropriate behavior in that he was chronically irritable and argued with others if he interacted. He interpreted proverbs correctly, and had no obsessive/ritualistic behavior, panic attacks or homicidal thoughts. He had transient thoughts of suicide without intent or plan. He had poor impulse control, no episodes of violence, and poor control of verbal irritability. He was able to maintain personal hygiene. Remote, recent and immediate memory were normal. The Veteran's Personality Assessment Inventory was considered invalid. He was currently employed full time. The Axis I diagnosis was anxiety disorder, NOS; history of alcohol abuse. The current Global Assessment of Functioning (GAF) score was 50. The examiner noted that the Veteran's psychological testing was invalid due to his selectively not responding to an inordinate number of items. In contrast, during the interview the Veteran described both positive and negative functioning and his self-description was consistent with previous available examination reports. There was some slight decline indicated related to coping with current stressors, including loss of a bar due to a son's behavior. Absence of friendships was indicted for a decline in GAF score from 55 in prior examinations to 50. Otherwise, the Veteran was indicated generally to function at or about 55 as in prior examinations. The examiner noted that "stubbornness" and some irritability was indicated as a family characteristic not specific to response to service. The examiner stated that the Veteran's decline in functioning appeared related to increased level of stress and also age-related decline. The examiner stated that the Veteran did not have total occupational and social impairment due to mental disorder signs and symptoms. However, the Veteran's mental disorder signs and symptoms did result in deficiencies in thinking (increased forgetfulness and mild concentration difficulties), family relations (conflict with his siblings, wife and children), work (lack of patience with coworkers, lack of concentration, negative comments to others), and mood (episodic down moods, chronic anxiety, irritability and a quick temper). In a September 2012 statement, the Veteran's wife stated that the Veteran had decided to retire because he could no longer handle the stress of truck driving. He was unable to tolerate coworkers and had received written warning about his rude and inappropriate communications with customers. In January 2013 correspondence, the Veteran's attorney stated that the Veteran had returned to work "part-time" and planned to quit in April or May 2013. In addition to the Veteran's spouse's September 2012 statement, the record includes statements received in October 2012 from the Veteran's sister and a long-term family friend who was also a nurse. These witnesses state that the Veteran's behavior included extremely inappropriate swearing, even around his grandchildren, neighbors, the minister, coworkers and friends. He repeated himself endlessly, was constantly on edge and obsessed about things. He was constantly angry and yelled at his wife in front of family, friends and the public. He argued with friends and once pushed his wife's friend against her car. His appearance had declined, he always looked disheveled and he no longer seemed to care. He was paranoid and always argued with people. He was anxious to the point of being aggressive. The Board finds that the February 2011 VA examination report and the witness statements support entitlement to a 70 percent evaluation for the Veteran's anxiety disorder. They document that the Veteran's anxiety disorder results in occupational and social impairment, with deficiencies in work, family relations, and mood, due to such symptoms as impaired impulse control, difficulty in adapting to stressful circumstances (including work or a worklike setting), neglect of personal appearance and hygiene, and inability to establish and maintain effective relationships. Diagnostic Code 9413. The Veteran's GAF score of 50 also supports an evaluation of 70 percent. By definition, the GAF scale considers psychological, social and occupational functioning on a hypothetical continuum of mental health-illness, and does not include impairment in functioning due to physical (or environmental) limitations. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) [hereinafter DSM- IV]; 38 C.F.R. § 4.125 (2012). According to the GAF Scale, a score between 41 and 50 represents serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job) (emphasis in original). DSM-IV at 32; 38 C.F.R. § 4.125. The Board also finds, however, that the preponderance of the evidence is against entitlement to a 100 percent evaluation for anxiety disorder. The February 2011 VA examination report show that the Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, or other similar manifestations which would support a 100 percent evaluation under Diagnostic Code 9413. See Mauerhan, supra. The Board is aware of the witnesses' assertions as to the severity of the Veteran's anxiety disorder. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Further, in this case one of the witnesses is a nurse. However, the observable symptoms the witnesses describe simply do not satisfy the criteria for a 100 percent evaluation. ORDER A 70 percent evaluation, but not higher, is granted for anxiety disorder, subject to the rules and regulations governing the award of monetary benefits. REMAND In light of the Veteran's 70 percent evaluation for anxiety disorder and the recent assertions of record that he is unable to work fulltime, the record raises the issue of entitlement to a TDIU. Although raised by the record, this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). In Rice v. Shinseki, 22 Vet. App. 447, 454 (2009), the Court held that when entitlement to TDIU is raised during the adjudicatory process of an underlying disability or during the appeal of the rating assigned for that disability, it is part of the claim for benefits for the underlying disability. This issue has not been adjudicated by the RO, and as such, has not been developed for appellate consideration. Pursuant to Rice, it must be remanded to the RO for adjudication. The Board also finds that the evidence of record is contradictory as to whether the Veteran's anxiety disorder, his sole service-connected disability, precludes employment. While the February 2011 VA examination found that the Veteran's anxiety disorder did not result in total occupational impairment, recent assertions from his wife and attorney indicate that the Veteran's anxiety disorder precludes full time employment. Thus, an additional evaluation is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran and his representative a letter that notifies him of the information and evidence required for a TDIU. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate his claim for a TDIU, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine whether the Veteran's service-connected anxiety disorder renders the Veteran unemployable. The claims file must be made available to the examiner. In addressing whether the Veteran's service-connected anxiety disorder renders the Veteran unemployable, the examiner is specifically asked to consider the February 2011 VA examination report and the recent assertions by the Veteran's spouse and his attorney that the Veteran's anxiety disorder precludes full time employment. A complete rationale for all opinions expressed must be provided. 3. Then, adjudicate the issue of entitlement to a TDIU. Notice of the determination and the Veteran's appellate rights should be provided to the Veteran and his representative. If the benefit sought is denied, the Veteran and his representative should be provided a statement of the case and afforded an appropriate period to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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