Citation Nr: 1311530 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-44 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 50 percent for generalized anxiety disorder (GAD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1999 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT Throughout the claims period, the Veteran's GAD has most nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating of more than 50 percent for GAD have not been met. 38 U.S.C.A. § 1155, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. GAD Increased Rating Service connection for GAD, also claimed as adjustment disorder and depressive disorder, was granted by RO action in November 2009, at which time a 30 percent rating was assigned under 38 C.F.R. § 4.130 , DC 9440, effective from December 22, 2008. In October 2009, the RO increased the rating assigned for GAD from 30 percent to 50 percent effective December 22, 2008. The issue now before the Board is the question of whether an initial rating in excess of 50 percent is assignable for GAD since December 22, 2008. The Veteran contends that an increased rating is warranted as she experiences moderately severe symptoms of GAD. 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 already has been established and 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). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As discussed below, the Board concludes that staged ratings are not warranted. 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). As noted above, the RO rated the Veteran as 50 percent disabled under DC 9440, Chronic Adjustment Disorder, although the service connected disability is GAD, which is rated under DC 9400. 38 C.F.R. § 4.130. DCs 9201 through 9440 are rated under the General Rating Formula for Mental Disorders. Id. Pursuant to the General Rating Formula, a 50 percent rating is warranted for a disability productive of 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 if the veteran exhibits 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; 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); 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. The list of symptoms in the rating formula is not intended to constitute an exhaustive list, but rather show examples of the types and degrees of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (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 veteran's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV"). According to DSM-IV (adopted by VA at 38 C.F.R. §§ 4.125 and 4.126 (2012)), a GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." The Board notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. See 38 C.F.R. § 4.126(a). GAF scores ranging from 51-60 reflect 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 peers or co-workers). Id. GAF scores ranging from 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 and has some meaningful interpersonal relationships. Id. The Veteran was assigned a GAF score of 55 by a VA examiner in October 2009 and assigned a GAF score of 64 by a private psychologist in November 2008. See VA C&P Mental Disorders Examination, October 2009; see also Psychological Evaluation, Dr. W.J.A., November 2008. These scores reflect mild to moderate impairment in several areas. See DSM-IV at 47. Therefore, the Veteran's GAF scores are consistent with the level of occupational and social impairment associated with a 50 percent rating. Initially, the Board notes that the Veteran was diagnosed with nonservice-connected depressive disorder. See Psychological Evaluation, Dr. W.J.A., November 2008. However, VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Veteran's 2008 examining physician did not separate the symptomatology manifested by her depression and adjustment disorder. See Psychological Evaluation, Dr. W.J.A., November 2008, pg. 6. Therefore, the Board will consider the Veteran's depression when determining the appropriate initial rating for service-connected GAD. The Board finds that the Veteran's GAD does not warrant a disability evaluation greater than 50 percent. The VA and private medical examinations have noted the presence of depression, anger, and anxiety; however, the Veteran works and is married with two young children. The record does not contain any evidence that the Veteran has received ongoing treatment for her GAD since separation from service in 2004. In November of 2008, the Veteran underwent a private psychological evaluation. The examiner noted the Veteran suffers from anxiety, specifically worries involving her job, finances and her son, although difficulties controlling the worry were denied. The Veteran described some trouble with intermittent waking and fatigue. The Veteran reported that she experienced a pretty good mood most of the day, nearly every day; however, she has frustrations with her relationship with men. Problematic family relationships were described, including with her son's father and her own father. She denied suicidal or homicidal ideation. The examiner found the Veteran's immediate, recent and remote memory all fell within normal limits. The symptoms of a Major Depressive Episode were acknowledged. The examiner diagnosed the Veteran with adjustment disorder with anxiety and depressive disorder not otherwise specified. The Veteran was assigned a GAF score of 64 based upon the her difficulties in social functioning, family relationships and mood. In October 2009, the Veteran was provided a VA mental disorders examination. Although the Veteran married in May 2009, she described getting easily irritated and agitated in her relationship. The Veteran described herself as withdrawn and very caution of people, although she does not feel totally isolated from society. The Veteran reported problems with managing her mood, including being quick to anger, and symptoms of anxiety, including inability to relax, heart pounding, nervousness and difficulty breathing. The examiner found the Veteran neatly groomed, cooperative, with spontaneous speech and appropriate affect but also lethargic, anxious, dysphoric, with difficulties falling asleep, inappropriate anger and irritability, mild panic attacks once a week and a mildly impaired immediate memory. The examiner noted the Veteran currently works in cardiac ultrasound but she has poor social interaction at work. The examiner found the Veteran's symptoms did not interfere with her activities of daily living and she was capable of handling her financial affairs. The Veteran was diagnosed with GAD and assigned a GAF score of 55, indicating moderate impairment in social functioning. Specifically, the examiner opined that the Veteran has impairment in judgment, thinking, family relationships and mood leading to reduced reliability and productivity. The Veteran has submitted various statements claiming that she should be entitled to a higher GAD rating due to her GAF score of 55 and the 2009 examiner's finding that she has deficiencies in judgment, thinking, family relationships and mood. See Notice of Disagreement, December 2009; see also VA Form 9, October 2010; VA Form 1-646, December 2010. Based on the foregoing, the Veteran's GAD has resulted in occupational and social impairment with reduced reliability and productivity. While the Veteran does not exhibit all of the specific symptoms associated with a 50 percent evaluation in the general rating formula, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442-43. As the evidence shows that the Veteran has consistently suffered similar symptoms or effects that cause occupational or social impairment equivalent to a 50 percent rating, a 50 percent evaluation is appropriate for the entire appeal period. Id. at 443; see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board notes that the overall symptomatology associated with the Veteran's GAD does not more closely approximate the schedular criteria required for the next higher 70 percent disability rating. The evidence does not show that the Veteran has experienced suicidal ideation, obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure or irrelevant, near-continuous panic or depression affecting her ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation or neglect of personal appearance and hygiene due to her service-connected GAD. While the Veteran does have some anxiety and difficulty with social interactions at work, she is still able to maintain a job. The Veteran has not shown an inability to establish and maintain relationships as she has two young children who live with her and married in May 2009. As such, the Board finds that the Veteran's symptomatology more closely approximates the schedular criteria for the 50 percent disability rating for the entire appeal period. 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 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. 38 C.F.R. §§ 4.130. The Veteran's GAD is manifested by symptoms that result in mild to moderate 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. Overall, the Board finds the preponderance of the evidence is against the Veteran's claim for an initial evaluation of GAD greater than 50 percent. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Appropriate notice was provided in a January 2009 letter. The Veteran's service treatment records, VA examination records, and private examination records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claims herein addressed on their merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of her appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA obtained a VA mental disorders examination in October 2009. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); VAOPGCPREC 11-95. In addition, the Veteran has not submitted any statements that since the October 2009 examination her disability has worsened. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The October 2009 VA examination was adequate, as the examiner considered the Veteran's statements and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. Thus, VA's duty to assist with respect to obtaining an examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER An initial rating in excess of 50 percent for GAD is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs