Citation Nr: 1311423 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 02-20 349A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased rating for a psychiatric disability, rated 10 percent prior to April 13, 2012, and 30 percent as of April 13, 2012. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from June 1965 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board, most recently in March 2012, at which time the appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT The occupational and social impairment from the Veteran's psychiatric disability for the period beginning October 23, 2007, more nearly approximated occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks than mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. CONCLUSION OF LAW The criteria for a disability rating of 30 percent, but not higher, as of October 23, 2007, for a psychiatric disability 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 VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA is to specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The record shows that the Veteran was mailed a letter in June 2005 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In a June 2006 letter, the Veteran was provided with appropriate notice with respect to the disability rating and effective date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. Bernard v. Brown, 4 Vet. App. 384 (1993). Following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claims would have been different had complete notice been provided at an earlier time. Overton v. Nicholson, 20 Vet. App. 427 (2006) (timing error may be cured by a new notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service medical records are of record. VA Medical Center treatment notes have been obtained. The Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any outstanding evidence. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). Currently the Veteran's psychiatric disability, characterized as anxiety neurosis, is rated under 38 C.F.R. § 4.130, Diagnostic Code 9400. That diagnostic code uses the General Rating Formula for Mental Disorders, which provides that a 10 percent disability rating is warranted for a mental disorder when there is 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 where the symptoms are controlled by continuous medication. A 30 percent disability rating is warranted for a mental disorder 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: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted for a mental disorder 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent disability rating is warranted for a mental disorder when there is 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 work-like setting); and inability to establish and maintain effective relationships. The maximum schedular rating of 100 percent is warranted for a mental disorder when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9400, General Rating Formula for Mental Disorders (2012). The symptoms listed in the General Rating Formula for Mental Disorders 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board finds nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). At an April 2002 VA examination, the Veteran reported that he had been receiving mental health counseling and treatment at the VA Medical Center for the last 10 years and that he took medication to help control his symptoms. The Veteran reported that he was currently feeling anxious and irritable. He reported that he experienced insomnia and that he was unable to concentrate. The Veteran reported that he was tense, excessively anxious, and that he worried overly about all kinds of things. He did not report experiencing panic attacks, obsessions, phobias, or ritualized behaviors. The Veteran reported that he used to work as a physical education teacher, but that he had been unable to work since suffering a work accident in 1993. Upon mental status examination, the Veteran was found to be appropriately dressed with adequate hygiene. The Veteran was cooperative and established eye contact with the examiner. The Veteran was alert and fully aware of the interview situation. The Veteran was in contact with reality and there was no evidence of psychomotor retardation or agitation. There was no evidence of tics, tremors, or involuntary movement. The Veteran's thought process was coherent and logical and there was no looseness of association or evidence of disorganized speech. There was no evidence of delusions, hallucinations, or any perceptual disorder. There was no evidence of phobias or obsessions. The Veteran did not have suicidal ideations. The Veteran's mood was anxious and his affect was broad and appropriate. The Veteran was oriented to person, time, and place. The Veteran's memory was intact for all events and his abstraction capacity was normal. The Veteran's judgment and insight were good. The examiner diagnosed generalized anxiety disorder and assigned a Global Assessment of Functioning scale (GAF) score of 70. GAF scores are based on a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240 (1995); Richard v. Brown, 9 Vet. App. 266 (1996); American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disroders, Fourth Edition (DSM-IV). The GAF score is based on all of the Veteran's psychiatric impairments. A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant), or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score of 41-50 indicates 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). A GAF score of 51-60 represents 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 coworkers). A GAF score of 61-70 represents 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, and has some meaningful interpersonal relationships. 38 C.F.R. § 4.125(a) (2012); American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disroders, Fourth Edition (DSM-IV). At an October 2007 VA examination, the Veteran reported that he was socially withdrawn and that he had been for years. He reported that he experienced trouble sleeping on a nightly basis. He reported that he was usually drowsy during the day, but the examiner noted that the Veteran had a diagnosis of sleep apnea. The Veteran reported that he was unable to concentrate and that he experienced loneliness and lack of motivation. The Veteran reported that he received mental health treatment at the VA Medical Center and that he took an anti-depressant for treatment. He reported that the medication did help somewhat. Upon mental status examination, the Veteran was noted to be tearful during the interview. The Veteran's speech was spontaneous and he was cooperative toward the examiner. The Veteran's affect was constricted and his mood was down. The Veteran's attention was intact, he was able to complete serial sevens, and he was able to spell a word forward and backward. The Veteran was oriented to person, time, and place. The Veteran's thought process and content were unremarkable and there was no evidence of delusions. The Veteran understood the outcome of his behavior and he understood that he had a problem. The Veteran did not exhibit inappropriate behavior and he interpreted proverbs correctly. There was no evidence of obsessive or ritualistic behaviors and the Veteran did not have suicidal or homicidal thoughts. The Veteran experienced panic attacks, but the frequency and severity were not noted by the examiner. The Veteran had good impulse control and he was able to maintain minimum personal hygiene. There was no interference with activities of daily living. The Veteran had normal remote, recent, and immediate memory. The Veteran was noted to be capable of managing his financial affairs. The examiner diagnosed general anxiety disorder and assigned a GAF score of 65. The examiner noted that the Veteran's mental disorder symptoms were controlled by continuous medication and that his neuropsychiatric condition was not severe enough as to render him unemployable. At an April 2012 VA examination, the Veteran reported that he experienced emotional stress, irritability, and anxiety. He reported that he had not experienced a significant decrease in functionality since his last VA examination and that he had not been hospitalized for his psychiatric disability. The Veteran reported that he attended church and helped with small household chores. He reported that he received relatives at home. The Veteran reported that he experienced difficulty sleeping. The Veteran reported that he sometimes experienced a depressed mood and that he experienced anxiety. He denied panic attacks. Upon mental status examination, the Veteran was found to be coherent, logical, and relevant. The Veteran did not exhibit have memory impairment. His affect was not constricted. There was no evidence of circumstantial, circumlocutory, or stereotyped speech. The Veteran's speech was not intermittently illogical, obscure, or irrelevant. The Veteran did not experience difficulty in understanding complex commands and his judgment was not impaired. The Veteran did not experience impairment in abstract thinking or other gross impairment in thought processes or communications. The Veteran did not exhibit disturbances in mood or motivation and there was no evidence indicating that the Veteran experienced difficulty in establishing and maintaining effective work and social relationships. The Veteran did not have difficulty in adapting to stressful circumstances. The Veteran did not experience suicidal or homicidal ideations. There was no evidence of obsessional rituals which interfered with the Veteran's daily routine. The Veteran did not have impaired impulse control or spatial disorientation. There was no evidence of persistent delusions or hallucinations. The Veteran did not exhibit inappropriate behavior and he did not neglect his personal appearance or hygiene. The Veteran was not disoriented to time or place. The examiner diagnosed generalized anxiety disorder and assigned a GAF score of 60. The examiner found that the Veteran's psychiatric disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner reported that the Veteran had not experienced a significant decrease in functionality since his last examination. The examiner noted that there was no evidence of psychological crisis or changes in pharmacological treatment. The Veteran's condition was noted to be stable. The record shows that the Veteran receives periodic mental health treatment and medication management at the VA Medical Center. A review of the treatment notes of record shows that the Veteran has routinely reported symptoms of anxiety, depression, and irritability. The Veteran is generally found to be well oriented and in stable condition. He has been maintained on a fairly steady dose of medication throughout the years. He is usually assigned a GAF score of 60 or 65, with sporadic outliers. Overall, the VA Medical Center mental health treatment notes of record do not show the Veteran to have psychiatric symptoms that are worse than those reported at his various VA examinations. The Board finds that the Veteran is entitled to a 30 percent disability rating for his psychiatric disability as of October 23, 2007, the date of the VA examination which first showed that the Veteran's psychiatric symptoms to have increased in severity. For the period beginning October 23, 2007, the Veteran has been shown to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At his October 2007 VA examination, the Veteran reported that he was socially withdrawn, that he experienced panic attacks, that he lacked motivation, and that he experienced periods of loneliness. Additionally, the Veteran has routinely complained of chronic sleep impairment and anxiety. Further, the VA Medical Center mental health treatment notes show that the Veteran has been maintained on an anti-depressant for treatment of his symptoms. Additionally, the April 2012 VA examiner clearly stated that the Veteran experienced occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and that the Veteran had not experienced a significant decrease in functionality since his last examination in October 2007. Therefore, when considered as a whole, the Board finds that the Veteran's psychiatric disability more closely approximates the criteria required for a 30 percent disability rating as of October 23, 2007. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). The Board acknowledges that the results of the VA examinations and the symptoms described in the VA examination reports and the Veterans Center mental health treatment notes do not indicate that the Veteran experiences all of the symptoms associated with a 30 percent disability rating for a psychiatric disability for the period beginning October 23, 2007. However, the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, a finding that there is occupational and social impairment resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks is sufficient to warrant a 30 percent disability rating for the period beginning October 23, 2007, even though all the specific symptoms listed for a 30 percent rating are not manifested. The Board has considered assigning a higher disability rating for the period prior to October 23, 2007. However, there is no indication from the record that the Veteran's psychiatric disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks for this period. At the April 2002 VA examination, the Veteran denied experiencing panic attacks, obsessions, phobias, or ritualistic behaviors. The Veteran reported that he had retired from his job teaching physical education and there was no indication from the examination report that the Veteran's psychiatric disability interfered with his ability to work. Further, the Veteran was noted to have good insight and judgment. He did not have any memory problems and his thought process was coherent and logical. There was no evidence of delusions or hallucinations and the Veteran was able to perform activities of daily living and maintain his personal hygiene. Additionally, the April 2002 VA examiner assigned a GAF score of 70, which is indicative of mild impairment. Therefore, the Board finds that the Veteran's psychiatric disability did not warrant a disability rating in excess of 10 percent prior to October 23, 2007. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). The Board has considered assigning a higher disability rating as of October 23, 2007. However, there is no indication from the record that the Veteran has occupational and social impairment with reduced reliability and productivity at any time during the period under consideration. The Veteran's speech has been normal and he has no impairment in memory or understanding. The Veteran has not been found to have impaired judgment, delusions, or hallucinations. The Veteran has not been found to have any impairment in his thought processes. Generally, the Veteran manages his symptoms fairly well with the use of medication. He is able to participate in social events, such as church, and has been noted to entertain family in his home. Therefore, the Board finds that a disability rating in excess of 30 percent as of October 23, 2007, is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record shows that the manifestations of the disability are contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. In addition, the evidence does not show frequent hospitalization or marked interference with employment beyond that envisioned beyond the currently assigned rating. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. 38 C.F.R. § 3.321(b)(1) (2012). Accordingly, the Board finds that the evidence supports the assignment of a 30 percent rating, but not higher, for a psychiatric disability as of October 23, 2007. However, the preponderance of the evidence is against the assignment of an increased rating prior to October 23, 2007, the assignment of a rating higher than 30 percent as of October 23, 2007, or the assignment of any higher ratings. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating of 30 percent, but not higher, as of October 23, 2007, but not earlier, for a psychiatric disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs