Citation Nr: 1317259 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 09-24 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a rating in excess of 10 percent for adjustment reaction with anxious mood. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from December 1995 to August 2003. This appeal comes to the Board of Veterans' Appeals (Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's adjustment reaction with anxious mood has been characterized by nightmares, intrusive thoughts, and anxiety, which are mostly controlled with medication, as well as transient mood disturbances and decreased concentration with work stresses. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for adjustment reaction with anxious mood are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9440 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). However, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the Veteran's claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320 (2010). In this case, the Veteran's service records have been obtained, as have records of VA treatment. The Veteran has also submitted statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA examination in conjunction with his claim in March 2008. 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The examiner reviewed the claims file and medical records, interviewed the Veteran, and conducted an assessment. Then, the examiner rendered an opinion as to the severity of the Veteran's condition. As the VA examination answers all questions necessary to render the determinations made herein, the Board finds it adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation of the claims). The mere passage of time between the examination and the Board's review does not, in and of itself, trigger a remand for another more contemporaneous examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a remand was not required solely due to the passage of time since the most recent VA examination); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Neither the Veteran nor his representative has contended that his condition has gotten worse since the last VA examination was conducted. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that a Veteran was entitled to a new examination because two years had passed since his last VA examination and he contended his disability had increased in severity). The Veteran's description of his symptoms in his July 2009 substantive appeal does not suggest a worsening of his condition since the March 2008 VA examination. Nor does the Veteran's representative argue in briefs submitted in September 2009 and April 2013 that the Veteran's condition had changed. Neither the Veteran nor his representative have requested a new examination, but instead have argued that the evidence currently of record reflects entitlement to a higher disability rating. Thus, the Board finds that the VA has complied with its duty to assist in affording the Veteran the March 2008 examination and a new examination is not required. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. §§ 3.321(a), 4.1 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The claimant bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Chronic adjustment disorder is rated under the criteria of 38 C.F.R. § 4. 130, Diagnostic Code 9440. A rating of 10 percent is assigned for occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or, symptoms controlled by continuous medication. A rating of 30 percent is assigned for 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 rating of 50 percent is assigned 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 per week; difficulty 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 in motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned 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 that 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. A rating of 100 percent is assigned 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. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. Higher scores correspond to better functioning of the individual. Under DSM-IV, GAF scores ranging between 71 and 80 are assigned when there are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and no more than slight impairment in social, occupational, or school functioning (e.g. temporarily falling behind in schoolwork). GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. The GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). In this case, the Veteran was assigned a 10 percent disability rating for his diagnosed adjustment disorder with anxiety. In March 2007 the Veteran was referred for psychological therapy at the VA. He reported that since the recent deaths of his grandparents he had experienced an increase in nightmares and flashbacks of experiences in service, including assisting in body recovery after an airplane crash and a fellow service member holding a gun to his head during a party. The Veteran reported he felt as if he couldn't protect his family from harm. He denied his symptoms were affecting him socially or at work, although he said his wife had told him that he is short with her. The VA doctor assigned him a GAF of 70. The VA doctor began to see him for cognitive restructuring therapy, diagnosing adjustment disorder with anxiety. In January 2008 the Veteran reported he was no longer having intrusive thoughts about his time in service and therapy was terminated. In March 2008 the Veteran underwent a VA post-traumatic stress disorder (PTSD) examination. The examiner opined that the Veteran did not meet the diagnostic criteria for PTSD but appeared to meet the criteria for the previously diagnosed adjustment reaction with anxiety. The examiner assigned a GAF of 80. The examiner found the Veteran to be neatly groomed and casually dressed, pleasant and cooperative, and with sustained eye contact. He was oriented and had normal memory, concentration, intellectual functioning, and speech. He reported no delusions or hallucinations and did not report or show compulsive, phobic, or disorganized behavior. The Veteran reported he had experienced "a lot of obstructive thoughts" involving images of his work in service after an airplane crash, intrusive memories of that work triggered by sensory cues, sleep disturbances, and efforts to push the unpleasant memories out of his thoughts. The Veteran reported he had worked as a cardiovascular technologist since shortly after his discharge from service. He reported his symptoms affect his work performance in that sometimes he has to focus himself due to concentration problems related to his intrusive memories from service. He stated that breaks at work give him a chance to cool off, and he said that he hoped his problems did not adversely affect his performance and he does his best not to let them interfere with work. The Veteran reported he had been married six years and had good relationships with his mother and step-father. He noted he used to have an active sports and recreational life but had decreased his exercise in recent years due to physical pain and decreased his recreational activities to spend more free time with his family. The examiner found the Veteran re-experiences his in-service stressor through intrusive thoughts and images, unpleasant dreams and nightmares, and psychological distress when exposed to reminders of the events. He also avoids reminders of the events and experiences hyperarousal, as evidenced by his sleep disturbance. The examiner described the following problems as being present but subthreshold: physiological reactivity when reminded of the disaster, feelings of estrangement from others, irritability and anger, concentration problems, and hypervigilance. The examiner administered the Beck Anxiety Inventory and found the Veteran's score indicated that he experiences mild to moderate anxiety and depression symptoms. The examiner noted that the Personality Assessment Inventory suggested that the Veteran's thought processes are marked by confusion and difficulties with concentration. The Veteran reported his sleep disturbances are partly due to his concerns about caring for his family and being on call for work. He did not report significant social and occupational problems stemming from lack of sleep. The Veteran reported that other than safety concerns about his family, he does not tend to worry. He said at times he experiences stress-related physiological arousal, but never hyperventilates and manages the arousal when it occurs. The examiner opined that the problems the Veteran reported do not appear to significantly affect his occupational or social functioning. The Veteran continued to seek mental health treatment at the VA in 2008 and 2009. In VA treatment records the Veteran described triggers at his work as including the smell of burning flesh in the catheterization laboratory and the smell of jet fuel from medevac helicopters. At a June 2008 VA psychology consultation, the Veteran reported he had an 18-month history of nightmares one to four times per week and a two-year history of flashbacks sometimes during the day manifesting with chest tightness, burning in his throat, and a slight shortness of breath. The nurse practitioner assigned him a GAF of 70 and he was prescribed medication to prevent nightmares and anxiety. In August 2008 the Veteran reported he had not been having intrusive thoughts and his nightmares were better. He stated that he is a worrier. Later that month, the Veteran reported his prescribed medication had reduced the number of nightmares but the ones he was still having were so troubling he was awake from 30 to 120 minutes afterward. He reported taking the prescribed anti-anxiety medication only on workdays as his triggers are minimal when not at work. In October 2008 at a VA mental health counseling session the Veteran reported he occasionally has triggers but was doing well with medication and coping strategies. At a mental health counseling session in March 2009 the Veteran denied being depressed but noted he was grieving the death of two family members, and wondered if he might be depressed and not realize it. He stated that he hadn't been to a friend's house in two years and wondered if he might be self-isolating. He reported having bad dreams, not nightmares, and said he wakes up rested. He suggested he could be down-playing his PTSD issues to appear less traumatized. In April 2009 the Veteran reported having an average of four nightmares per week. However, a June 2009 mental health counseling note states that the Veteran recently started taking a new medication that had reduced his nightmares to once or twice a week. The Veteran stated that the medicine did cause him to wake up more drowsy but didn't interfere with his life too much. Also at the June appointment, the Veteran's treating nurse stated that the anti-anxiety medication the Veteran was taking had been very effective in treating his anxiety triggers at work. The Veteran reported the relationship with his wife was good. The nurse found his appearance, behavior, speech, language, thought process and association, thought content, insight, judgment, memory, and fund of knowledge all to be normal. His mood was euthymic. In his July 2009 substantive appeal, the Veteran noted he was receiving treatment at the VA for his adjustment disorder, including medication therapy. He stated that at worst he has nightmares three to four times a week and at best once or twice a week. He reported he continues to have several triggers at work, leading him to take anti-anxiety medication during working hours and at stressful times. When not taking the medication he said he gets chest tightness and feels short of breath. He stated that his mind can get fixated on traumatic images, making it difficult to focus on the "job at hand or the situation I am in." He indicated he had understated his symptoms in the past due to not wanting to be labeled with having a mental disorder, leading to a higher GAF score. The Board has considered all the evidence and finds a disability rating of 10 percent most closely approximates the severity of the Veteran's condition. While the evidence supports that the Veteran experiences nightmares and intrusive memories, due particularly to triggers at work, those symptoms are best categorized as mild or transient and causing decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Further, treatment records indicate the Veteran's symptoms are well-controlled by continuous medication he began taking in June 2008. Specifically, by August 2008 the Veteran reported he had not been having intrusive thoughts. In October 2008 the Veteran reported he occasionally has triggers but was doing well with medication and coping strategies. In June 2009, the Veteran's treating nurse stated that the anti-anxiety medication the Veteran was taking had been very effective in treating his anxiety triggers at work. In his July 2009 substantive appeal, the Veteran also reported taking anti-anxiety medication at work due to his known triggers and described having physical and mental symptoms in reaction to triggers when not on the medication. In addition to intrusive thoughts due to triggers, the other significant symptom reported by the Veteran is nightmares. Although records show the Veteran tried several medications for the nightmares during 2008 and 2009, a June 2009 report states that his nightmares had reduced to once or twice a week on a new medication and the Veteran reported they didn't interfere with his life too much. The Veteran also told the VA examiner in March 2008 that he did not have significant social or occupational problems from lack of sleep. The GAF scores assigned the Veteran support a finding of only mild symptoms reflective of a 10 percent disability rating. In March 2007 the Veteran's treating doctor at the VA assigned a GAF of 70, in March 2008 the VA examiner assigned a GAF of 80, and in June 2008 the Veteran's treating nurse practitioner at the VA assigned a GAF of 70. A GAF of 70 is assigned when there are some mild symptoms, and a GAF of 80 denotes transient and expectable reactions to psychosocial stressors and no more than slight impairment in social, occupational, or school functioning. Thus, while the evidence overall shows the Veteran does experience some symptoms that cause interference with his work efficiency and ability to perform occupational tasks, the evidence does not support that it rises to the level of a 30 percent rating. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular 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. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected adjustment disorder that would render the schedular criteria inadequate. The Veteran's main symptoms are intrusive thoughts and nightmares, which are contemplated in the rating assigned. As such, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. Moreover, even if it were argued that the schedular rating criteria were inadequate, the Board finds no reason to refer the case to the Compensation and Pension Service to consider whether an extra-schedular rating is warranted. In this case, there is no evidence of any hospitalization associated with the Veteran's adjustment disorder. In addition, the Board finds the record does not reflect that the Veteran's adjustment disorder markedly interferes with his ability to work. See 38 C.F.R. § 4.1 (indicating that generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). The manifestations of the Veteran's disability are considered by the scheduler rating. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Overall, the preponderance of the evidence is against the Veteran's claim for an increased rating for his service-connected adjustment reaction with anxious mood. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER A rating in excess of 10 percent for adjustment reaction with anxious mood is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs