Citation Nr: 1317502	
Decision Date: 05/29/13    Archive Date: 06/06/13

DOCKET NO.  09-08 139	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an effective date prior to April 29, 2002, for the award of service connection for anxiety disorder with cognitive impairment secondary to in-service head trauma.  

2.  Entitlement to an initial disability evaluation in excess of 50 percent for anxiety disorder with cognitive impairment secondary to in-service head trauma, for the time period prior to October 23, 2006.  

3.  Entitlement to a separate, compensable disability evaluation for cognitive impairment.  

4.  Entitlement to a total disability evaluation based on individual unemployability (TDIU).  


WITNESSES AT HEARING ON APPEAL

Veteran, spouse, and brothers


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel


INTRODUCTION

The Veteran served on active duty from June 1960 to July 1961.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2006 and June 2008 rating decisions of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington DC and the VA Regional Office (RO) in St. Petersburg, Florida, respectively.  In the September 2006 decision, the AMC effectuated the Board's June 2006 grant of the Veteran's appeal as to entitlement to service connection for disability described as "anxiety disorder (claimed as anxiety reaction/panic attacks)."  The AMC determined, in the first instance, that the proper effective date for award of service connection for anxiety disorder (claimed as anxiety reaction/panic attacks) was April 29, 2002 and that the proper evaluation (or rating) for the disability was 50 percent.  In a February 2007 rating decision, the RO awarded a 100 percent rating for anxiety disorder (claimed as anxiety reaction/panic attacks), effective October 23, 2006.  

The RO granted service connection for cognitive impairment in the June 2008 rating decision.  In that decision, the RO listed that disability as "anxiety disorder with cognitive impairment secondary to in-service head trauma (claimed as anxiety reaction/panic attacks)" and determined that the award of service connection was effective April 29, 2002.  The RO also determined that the rating assigned for this disability was the rating already previously assigned for his psychiatric disability that had been described as anxiety disorder (claimed as anxiety reaction/panic attacks) - 50 percent from April 29, 2002 to October 23, 2006 and 100 percent from October 23, 2006, forward.  The RO explained that it was including the cognitive impairment award in the evaluation for the anxiety disorder.  In the instant decision, the Board's references to the Veteran's "psychiatric disorder" are references that encompass all psychiatric disability whether referred to by the RO or AMC as an anxiety disorder or as cognitive impairment.  

The Board's jurisdiction over the issue of entitlement to TDIU derives from the Veteran's August 2007 notice of disagreement with the rating assigned for his service-connected psychiatric disorder in the September 2006 rating decision.  The appeal of the issue of whether a higher schedular rating or referral for an extraschedular rating specifically for the Veteran's service-connected psychiatric disorder is ripe for adjudication.  However, because the Veteran has other service-connected non-psychiatric disabilities and some of the medical evidence refers to his psychiatric and medical conditions (both service-connected and not service-connected) as rendering him unemployable, the issue of entitlement to TDIU must remanded to the agency of original jurisdiction (AOJ) for further development and adjudication in the first instance.  The AOJ in this case includes the RO and the AMC.  

The Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO in March 2010.  In October 2010, the Veteran testified at a Travel Board hearing before the undersigned.  Transcripts of both hearings are associated with the claims file.  

In April 2011, the Board remanded these issues to the RO via the AMC for additional development.  The issues have properly been returned to the Board for appellate consideration.  

In April 2013, the Veteran submitted additional VA treatment records dated in 2011 and 2012.  He also submitted a waiver of consideration of those records by the AOJ in the first instance.  The Board has therefore considered these records along with all other evidence of record, irrespective of when the evidence was submitted.  See 38 C.F.R. § 20.1304(c) (2013).  

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via AMC in Washington, DC.

FINDINGS OF FACT

1.  The Board disallowed service connection for an acquired psychiatric disorder in a decision that has the date April 15, 1999 stamped on its face.  

2.  The first claim of entitlement to service connection for a psychiatric disorder received by VA after April 15, 1999 was received at the RO on April 29, 2002.  

3.  The rating criteria found in VA's Schedule for Rating Disabilities under the General Formula for Rating Mental Disorders encompasses all symptoms of the Veteran's service-connected cognitive impairment and anxiety disorder.  

4.  Symptoms of the Veteran's cognitive impairment overlap and are duplicative of symptoms of his anxiety disorder.  

5.  For the period prior to October 23, 2006, the Veteran's service-connected anxiety disorder with cognitive impairment secondary was not approximated by disability greater than 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, impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  


CONCLUSIONS OF LAW

1.  The criteria for entitlement to an effective date earlier than April 29, 2002 for the award of service connection for anxiety disorder with cognitive impairment secondary to in-service head trauma, have not been met.  38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.102, 3.400(q), (r) (2012).  

2.  The criteria for a disability evaluation for cognitive impairment separate from the disability evaluation for anxiety disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002), 38 C.F.R. §§ 3.102, 4.14, 4.130 (2012)

3.  The criteria for an evaluation in excess of 50 percent for the Veteran's anxiety disorder with cognitive impairment have not been met for any period prior to October 23, 2006.  38 U.S.C.A. §§ 1155, 5107 (West 2002), 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130 Diagnostic Code 9413 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process

VA has duties to notify and assist claimants in substantiating their claims for VA benefits and the DRO and Veterans Law Judges that conduct hearings have duties associated with those hearings.  The Board has a duty to ensure compliance with its directives made pursuant to remands to the AOJ for additional development.  


I.A.  Due Process - Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  For service-connection claims, this notice must address the downstream elements of disability rating and effective date.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

VA received the Veteran's claim that led to all of the issues on appeal on April 29, 2002.  The VCAA duty to notify was satisfied by way of letters sent to the Veteran in August 2002, April 2003, and June 2006.  Those letters informed him of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence.  

Although the notice as to assignment of disability ratings and effective dates was not sent until after the initial unfavorable adjudication by the RO, after the notice as to these downstream issues was sent in June 2006 the Veteran had a meaningful opportunity to participate in the processing of his claim and the AMC readjudicated the issues on appeal, as recently as in a February 2013 supplemental statement of the case.  These actions cured the timing defect.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  

VA has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The Veteran's service treatment records have been associated with the claims file since 1962.  The RO has obtained his VA treatment records and associated them with the claims file.  Either with VA's assistance or submitted directly by the Veteran, all relevant identified and obtainable private treatment records have been associated with the claims file.  As explained in the April 2011 Board Remand, evidence in the claims file tends to show that the Veteran is in receipt of benefits from the Social Security Administration (SSA).  

Pursuant to the April 2011 Board Remand, the AMC attempted to obtain any available relevant records from the SSA.  Associated with the claims file is an April 2011 response in which the SSA indicated that the individual listed in VA's request for records is not entitled to disability or Supplemental Security Income (SSI) benefits and that the SSA does not have his medical records on file.  These facts are also documented in a VA memorandum dated in September 2012.  That memorandum also documents that the Veterans Service Representative (VSR) telephoned the Veteran and asked him if he had any SSA records in his possession and that he replied that he did not. 

It is recognized that the Disability Determination and Transmittal document with an examiner dated signature in 2003 appears to indicate that the Veteran's case was before the SSA at that time and that there is a letter dated in January 2003 addressed to the Veteran from the SSA indicating that a favorable decision had been made on his claim for SSI.  These documents present a seeming contradiction as to the SSA's response received in April 2011.  

Here, the Board emphasizes that the Social Security number and first and last name shown on the 2003 SSA documents are the same as the Social Security number and first and last name shown on the VA's request to the SSA for the records and on the April 2011 response from the SSA to that request.  The same Social Security number and first and last name are shown on the photograph of the Veteran's Social Security card that he submitted to VA in August 2004.  

Regulation provides VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile.  38 C.F.R. § 3.159(c)(2).  Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.  Id.  The Board cannot explain why the SSA does not have records of the Veteran.  However, the Board finds that because VA has correctly requested the records from the SSA and the SSA has responded unambiguously that it does not have them, VA has met its duty to assist in this regard.  

VA provided examinations with regard to the Veteran's psychiatric condition in January 2007 and June 2008.  38 C.F.R. § 3.159(c) (4).  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 January 2007 and June 2008 examination were adequate.  In both instances, the VA examiners considered all of the pertinent evidence of record, to include his service treatment records, and personal statements and history.  38 C.F.R. § 3.159(c) (4).  

The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims.  Hence, no further notice or assistance is required to fulfill VA's duty to assist 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).  


I.B.  Due Process - Remand Compliance

An appellant is entitled as a matter of law to compliance with the Board's remand directives and the Board errs if it does not ensure such compliance.  See Stegall v. West, 11, Vet. App. 268, 271 (1998).  The April 2011 Board Remand directive to obtain available SSA records has been discussed and there has been compliance with that directive.  In that Remand, the Board also directed the AMC to obtain any outstanding VA records of treatment of the Veteran's psychiatric disorder for the period from July 1961 to October 2006 and to readjudicate his the issues on appeal.  

The Board directed the AOJ to obtain any outstanding records of VA treatment for the Veteran's psychiatric disorder for the period from July 1961 to October 2006 because the claims file contained records of treatment at the VA Medical Center (VAMC) in Tampa, Florida for the period from June 2002 to February 2004, and in July 2006, and therefore efforts needed to be made to obtain any records from that facility that were not associated with the claims file.  Of record are several VA Form 10-7131s used by the AMC to request VA treatment records.  These include requests dated in April 2011, August 2011, September 2011, October 2011, and December 2011.  

Of record is a November 2011 response from the Tampa VAMC that a determination had been made to disclose in full the information per the RO's request.  Included with that response were thirty-seven pages of records of treatment dated from May 2002 to August 2006.  A report of general information of a telephone contact with the Veteran in December 2011 documents that a VA employee informed the Veteran that records of treatment from the Tampa VAMC for the period from May 2002 to August 2006 had been obtained and that the Veteran reported that he did not begin to receive treatment at that facility until he moved to Florida and that he requested that the AMC continue processing his appeal without a negative response.  Here, the Board concludes that there are no additional records at the Tampa VAMC because the Tampa VAMC sent all of the available records to the AMC.  The December 2011 contact information supports a finding that there are no additional outstanding records of treatment at the Tampa VAMC.  

Documented in that December 2011 report of general information is the Veteran's report that he was treated at several VAMCs since his separation from active service, including VAMCs in Lakehurst, New Jersey, Chicago, Illinois, and St. Louis, Missouri.  A January 2012 report of general information documents a telephone conversation in which the Veteran reported to the VSR that he, the Veteran, would obtain his medical treatment records from these three facilities.  

In January 2002, the AMC requested treatment records from VAMCs in the identified locations for the time period from July 1961 to the present.  In February 2012 it received separate responses from the Chicago and St. Louis VAMCs that the respective VAMCs did not have any such records.  In February 2012, the AMC received a response from the VA New Jersey Health Care System that it needed additional time to process the request.  A May 2012 report of general information documents a telephone contact between an AMC employee and the release of information personnel at the East Orange, New Jersey VAMC.  The East Orange, New Jersey, VAMC official informed the AMC it had no records of the Veteran and a document dated that same month from the New Jersey Health Care System confirms that response.  

Another report of general information documents a May 2012 telephone contact between an AMC employee and the Veteran.  The Veteran informed the AMC that he had some, if not all, of the records and would send them to the AMC.  Filed in the claims file after that report of general information are documents that have been of record for many years.  These include the first and second pages of his initial application for VA compensation benefits filed in 1961.  On the first page is circled his place of birth, Belleville, Illinois, and the service information entries of June 1960 entrance into active service at St. Louis, Missouri and July 1961 separation from active service at Lakehurst, New Jersey.  The second page lists that he received treatment for a head injury at the Naval Hospital in Lakehurst, New Jersey.  He also submitted a page from the January 1962 VA neuropsychiatric examination report that was conducted at the VA Hospital outpatient clinic in St. Louis Missouri.  Additionally he submitted a request for physical examination form dated in August 1961 that originated at an office in Chicago, Illinois.  

Clear from these submissions is that the passage of time, the Veteran's unfamiliarity with the division between VA and the service department, and his unfamiliarity with the distinction between VA treatment and VA examinations for compensation and pension purposes has led to an incorrect identification of treatment at VAMCs in Missouri, New Jersey, and Illinois.  That coupled with the negative responses from VAMCs in those locations leads the Board to the conclusion that there are no outstanding records of treatment at VA facilities in the locations referred to by the Veteran.  

From these requests and responses and the readjudication of the issues on appeal in a February 2013 Supplemental Statement of the Case, the Board concludes that there has been compliance with the remaining directives of its April 2011 Remand.  


I.C.  Due Process - DRO and Board Hearings

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the DRO or Veteran's Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

There are transcripts of several hearings associated with the claims file.  A Veterans Law Judge, other than the undersigned, held a hearing with the Veteran in April 2006 with regard to the issue of entitlement to service connection for anxiety reaction and with regard to the issue of entitlement to service connection for residuals of a head injury, concussion.  That Veterans Law Judge granted the appeal as to entitlement to service connection for anxiety disorder and thus fully disposed of that issue.  That Veterans Law Judge remanded the issue of entitlement to service connection for a head injury to the AOJ for additional development.  That issue was returned to the Board and the Veterans Law Judge remanded it again in December 2007 for the AOJ to provide en examination to determine the nature and etiology of the Veteran's complaints of injuries, particularly complaints of back and neck symptoms, related to his in-service head injury.  

Following completion of the requested examination, the RO awarded service connection for degenerative disc disease of the lumbar spine, degenerative joint and disc disease of the cervical spine, and radiculopathy of the left upper extremity as being related to the same in-service injury that resulted in the Veteran's head injury.  Under the facts of this case, those awards satisfied the appeal as to the issues of entitlement to service connection for residuals of a head injury.  The hearing conducted in April 2006 is therefore associated with issues not before the Board at the present time.  For this reason, whether that Veterans Law Judge complied with the requirements of 38 C.F.R. § 3.103(c)(2) is not a determination that needs to be addressed.  

The DRO who conducted the March 2010 hearing complied with most of the requirements of 38 C.F.R. § 3.103(c)(2).  She identified the issues that are currently before the Board and decided in this appeal.  DRO Hearing Transcript (DRO T.) at 2-3.  The DRO did not suggest the submission of any evidence that may have been overlooked.  However, the Veteran or his spouse identified evidence that was not of record that may be pertinent to the issues; for example, the reference to SSI disability.  DRO T. at 9.  It is clear from the record and the transcript that there is no other evidence that may have been overlooked.  For this reason, to the extent that the DRO did not meet all of its duties in this case, the Board concludes that such failure was harmless error.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that the harmless-error rule that courts ordinarily apply in civil cases is applicable to cases of claims for veterans' benefits administered by VA).  

During the October 2010 Board hearing, the undersigned Veterans Law Judge identified the issues on appeal that are decided in this decision.  2010 Board Hearing Transcript (2010 Board T.) at 2.  The Veterans Law Judge also identified any evidence that was not of record that may be pertinent to his claim, including evidence of filing a claim earlier than the 2002 claim.  2010 Board T. at 14.  It is noted that the Veteran volunteered information as to where additional evidence relevant to the issues on appeal may exist, referring to treatment records that he believed may be in Tampa, Florida or Lake Hurst, New Jersey locations.  Id. at 11.  This tends to show that he was aware of the need to provide such evidence and reported all possible locations of evidence of which he was aware.  As explained above, VA made necessary efforts to obtain any such evidence.  

Given the specific nature of his claims and considering the interchange between the undersigned and the Veteran and his representative, the Board concludes that the issues were sufficiently "explained . . . in terms of the scope of the claim for benefits," and that "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the issues before it based on the current record.  


II.  Effective Date - Service Connection for Anxiety Disorder

The Veteran contends that he is entitled to an effective date for service connection for anxiety disorder earlier than the April 29, 2002 date assigned by the AMC.  In his August 2007 notice of disagreement he contended that the effective date was unfair due to his forty-eight years of pursuing compensation for a psychiatric disability.  In his April 2008 substantive appeal, he provided three arguments for why an earlier effective date is warranted.  First, that testing and evaluation in 1960 was improper.  Second, that there is new evidence from a VA physician, from 2008.  Third, that on page nine of a June 2006 Board decision (which the Veteran refers to as a letter), the "Board discounts the 1962 psychiatric examination."  

Testimony taken during the March 2010 DRO hearing and the October 2010 Board hearing can be summarized as the Veteran's reliance on the Board's June 2006 decision, that granted his appeal as to entitlement to service connection for an anxiety disorder, for his contention that the effective date of the grant should be earlier than April 2002.  

The Board has reviewed the June 2006 decision but finds that it does not specify that the effective date of award of service connection for a psychiatric disorder should be earlier than that assigned by the RO.  Nor does it lead to that legal conclusion.  As to the arguments that testing and evaluation was improper and that the June 2006 Board decision discounted the 1962 psychiatric examination, those are arguments that, at most, could be construed as allegations of clear and unmistakable error (CUE) in the 1962 RO decision.  In an April 2004 rating decision, the RO denied an assertion of CUE in the 1962 decision.  The Veteran did not appeal that decision.  The issue of whether there was CUE in an earlier decision is not before the Board.  Nor does the Board find his arguments sufficient to raise another claim of CUE in an earlier decision.  The long time span from his first claim to when service connection for a psychiatric disorder was established is not a basis for changing the effective date under the facts of this case.  This should be clear from the Board's explanation of the law as applied to the facts of this case.  

Service connection for the Veteran's psychiatric disorder was granted after his claim, which had previously been denied as early as 1962, was reopened following the submission of new and material evidence.  That is, evidence that had not previously been submitted to VA decision-makers and was related to an unestablished fact necessary to substantiate the claim and raised a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  

Unless specifically provided otherwise in Chapter 38 of the United States Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation shall not be earlier than the date of receipt of the claim.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).  A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2012).  Date of receipt of a claim, information, or evidence, means the date on which a claim, information, or evidence was received by VA.  38 C.F.R. § 3.1(r) (2012).

Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103 (2012).  An appeal of an AOJ decision to the Board is initiated by the filing of notice of disagreement with the decision.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200 (2012).  A notice of disagreement is a statement, reduced to writing, that can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result.  38 U.S.C.A. § 7105(b); 38 C.F.R. § 20.201 (2012).  Except in the case of simultaneously contested claims (which this is not) the notice of disagreement must be filed within one year from the date of mailing of result of the initial determination.  See 38 U.S.C.A. § 7105(b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012).  If a timely notice of disagreement is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code.  38 U.S.C.A. § 7105(c).  

If VA fails to provide the claimant with information or material critical to the appellate process, the one year appeal period does not begin to run.  See Cook v. Principi, 318 F.3d 1334, 1340 (2002).  Additionally, the Veterans Court has explained that "if new and material evidence is received within one year after the date of mailing of an AOJ decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" that prevents an initial determination from becoming final."  See King v. Shinseki, 23 Vet. App. 464, 466 (2010) (quoting from 38 C.F.R. § 3.156(b)); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (explaining that when new and material evidence is received during the appeal period of an unappealed AOJ decision and such evidence is not considered by VA as part of the original claim, then the failure to file a notice of disagreement does not necessarily mean that the decision is final).  

In cases where new and material evidence that leads to reopening a claim is other than service department records, if such new and material evidence is received within the appeal period of a decision of the agency of original jurisdiction or, if such decision is appealed, prior to the appellate decision, then the effective date will be as if the former decision had not been made.  38 C.F.R. § 3.156(b).  If such new and material evidence is received after a decision that has become final, then the effective date can be no earlier than the date of receipt of the new claim.  38 C.F.R. § 3.400(q); see also 38 C.F.R. § 3.156(b).  Stated another way in the regulations, is that for reopened claims that do not involve new and material service department records, the effective date of the award shall not be earlier than the date of receipt of the claim.  38 C.F.R. § 3.400(r).  

If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim and, if an award based all or in part on the such records is, in general and depending on other qualification, effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.  38 C.F.R. § 3.156(c).  

Board decisions are final on the date stamped on the face of the decision.  38 C.F.R. § 20.1100 (2012).  

Once a claim that has been subject to a final denial, whether by the AOJ or the Board, if it is later reopened based on submission of new and material evidence other than those records described at 38 C.F.R. § 3.156(c), the "date of claim" is the date of the request or "claim" that led to the reopening.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (explaining that, absent a showing of clear and unmistakable error in an earlier decision, a claimant cannot receive disability payments for a time frame earlier than the application date of his claim to reopen).  

VA first received a claim of entitlement to VA disability compensation or pension benefits from the Veteran in July 1961.  In that claim he requested service connection for disability due to an in-service head injury.  Of record is a report of a January 1962 VA examination conducted at the VA Hospital in St. Louis, Missouri.  On February 16, 1962, an RO mailed to the Veteran notice of its decision to deny service connection for his claimed disabilities including a nervous condition.  In that letter he was informed that he could appeal the decision to the Board within one year of the date of the letter and to inform the RO if he wished to appeal so the RO could send him the proper form.  The letter was carbon copied to his representative at the time, The American Legion.  

There is no indication in the claims file that the Veteran initiated an appeal of the February 1962 decision within one year of the mailing of the February 16, 1962 letter.  No additional evidence was received within that appeal period.  The February 1962 decision thus became final.  

The next correspondence from the Veteran or his representative was another VA Form 21-526, received by the RO in Albuquerque, New Mexico in September 1974, in which he again claimed entitlement to service connection for a nervous condition.  In that document he identified three non-VA treatment providers who he reported provided relevant treatment.  On October 30, 1974, that RO sent a letter to the Veteran informing him that service connection had previously been denied in 1962 and that no new and material evidence had been submitted to change that decision.  Enclosed with that letter was a VA Form 1-4107.  That form provided notice as to the Veteran's procedural and appellate rights.  The confirmed rating decision, dated in October 1974, does not list any representative.  Assuming that the Veteran did not have a representative at that time, there can be no successful argument against a finding that that decision became final.  Even if he did have a representative at that time and it could be argued that the appeal period did not begin to run, the appeal period did run as to later decisions on the same issue where there clearly was proper notification.  Notably, a Board decision issued in April 1999, to be discussed further in the instant decision, subsumed the earlier RO decisions and that Board decision was final in April 1999.  See Yoma v. Brown, 8 Vet. App. 298 (1995) (stating that a previous merits decision by the RO is subsumed by a Board decision and relying on Robinette v. Brown, 8 Vet. App. 69, 80 (1995); see also Hudgins v. Brown, 8 Vet. App. 365, 368 (1995) (per curiam order) (stating that the Veterans Court's vacating of a Board decision had the legal effect of nullifying the underlying merits adjudication by the RO because such decision was subsumed by the Board's decision).

In April 1975, the RO received a statement in which the Veteran requested that VA transfer his records to the RO in Chicago, Illinois, and in which he stated "I also want to reopen my records and file a claim for possible compensation or pension because of condition I believe were caused by my active duty in the U.S. Navy" (original all in upper case).  He also indicated that he had given The American Legion power of attorney to represent him.  In a letter mailed to the Veteran and his representative on August 11, 1975, the RO informed him that his claim was previously considered and denied and that in order to reopen the claim he must provide new and material evidence.  It informed him that the evidence he recently submitted was not new and material and therefore no further consideration would be given to his claim.  A copy of the decision was sent to his representative.  There is no indication that he was provided with notice of his procedural and appellate rights at that time.  However, his claim to reopen was received within one year of the 1974 decision and therefore was not actually a new claim, regardless of his statement that he wanted to reopen the claim.  It is better construed as no more than a contention that he still wanted service connection for a psychiatric disability.  Even if it is construed as a new claim, to the extent that it could be argued that it did not become final because he was not again provided notice of procedural and appellate rights, his appeal period ran after later denials of his claim of which he clearly was properly notified, and the RO decision was subsumed by the April 1999 Board decision.  

No evidence related to a psychiatric disorder or any other disease or injury was received within one year of the August 1975 letter.  No statement indicating a desire to appeal the decision was received within one year of the letter.  

The next mention of a disability was a VA Form 21-526 received at the RO in St. Petersburg, Florida on March 15, 1995.  On June 14, 1995, the RO mailed a letter to the Veteran informing him that his claim had been denied in February 1962 and that the decision had become final.  It informed him that he could reopen the claim by submitting evidence not previously considered that would tend to support his claim.  It informed him that he could submit such evidence and that he could appeal the decision.  A VA Form 4107 was enclosed that contained his procedural and appellate rights.  The letter was copied to his representative.  

No document or new and material evidence was received within the appeal period of the June 1995 mailing.  Hence, that decision became final and, given that he was properly notified of that decision even if the appeal period for any earlier decision was tolled, that appeal period expired in June 1996.  In short that decision and all previous RO decisions are therefore final.  

In August 1996, the RO received a statement in which the Veteran referred to an incident during active service in which he claims to have suffered a head injury.  He reported that he had been in pain for many years and that he had been awarded Social Security benefits due to an inability to work.  That information was not materially different from what he reported in his 1961 claim or what he reported to the examiner during the January 1962 examination.  It is therefore not new and material evidence.  Nor is there any statement indicating a desire to appeal the RO's decision to the Board.  The August 1996 statement is not a notice of disagreement.  

However, that same month, the RO provided the Veteran with VA Form 21-4142s and requested that he complete the forms so that VA could assist him in obtaining evidence from treatment providers.  He returned one VA Form 21-4142 listing five different hospitals for treatment between 1961 and 1993.  He did not provide addresses for any of the hospitals.  Nevertheless, the RO obtained addresses for some of the identified hospitals and requested records of treatment of the Veteran.  

The Veteran perfected an appeal of the RO's decision and in a decision stamped on its face with the date April 15, 1999; the Board denied his petition to reopen his claim of entitlement to service connection for an acquired psychiatric disability.  That decision became final in April 1999.  To the extent that any earlier decision did not provide him with sufficient notice of his procedural and appellate rights after the 1962 decision, the Board's decision subsumed any such decisions.  

Following the April 1999 Board decision, the next document received by VA was a request to reopen his previously denied claims.  The earliest date stamp on that document is May 7, 2002.  The document however is annotated as received on April 29, 2002 and that is the date of an accompanying letter from the Veteran's representative at the time, Disabled American Veterans.  

April 29, 2002 is thus the date of the first claim received after issuance of a final unfavorable decision on the issue of entitlement to service connection for a psychiatric disorder.  

In the April 2011 Board hearing, the Veteran stated that his records were lost for twenty years and then they were found in Tampa but they were behind a file cabinet in New Jersey where it got burned down.  2010 Board T. at 11.  The record does not show that the Veteran's service treatment records were ever lost.  Rather, the 1962 decision refers to his service records and notes that he fell and hit his head during service and was rendered unconscious.  

There is no evidence, other than the Veteran's statements, that there were lost records found after many years.  His service treatment records are associated with the claims file, the January 1962 examination report refers to those records and the February 1962 rating decision refers to those records.  As between these references and the Veteran's unsupported report that his records were lost, to the extent that he refers to service treatment records, the Board finds the January and February references more probative.  This is because those references were contemporaneous to the time at issue and the Veteran's statements come many years after that time.  The Board concludes that there have been no new and material service department records added to the claims file since the 1962 decision.  Hence, 38 C.F.R. § 3.156(c) is not for application.  

The preponderance of evidence shows that the first claim received after the 1999 Board decision, which was final on the date stamped on its face, was received on April 29, 2002.  That was the claim that eventually led to the grant of service connection for a psychiatric disorder.  Therefore statute and regulation preclude assignment of an effective date for service connection for a psychiatric disorder earlier than that date and his appeal as to this issue must be denied.  There is reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


III.  Disability Ratings

In this section the Board provides the law and regulations for rating psychiatric disability as such are applicable to both the issue of whether separate ratings are warranted for cognitive impairment and anxiety disorder, respectively, and are applicable to whether a higher rating or ratings are warranted for the Veteran's service-connected psychiatric disability for any period from April 29, 2002 to October 23, 2006.  In subsections III(A) and III(B) it addresses those individual issues.  

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10. 

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  This appeal arises from the rating decisions in which service- connection was established for anxiety disorder (September 2006) and for cognitive impairment (June 2008).  As such, the Board has considered whether different ratings are warranted for different periods between April 29, 2002 and October 23, 2006, based on the facts found.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Evaluations, or ratings, for mental disorders, are based on the criteria found in the General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130.  

The General Formula for Rating Mental Disorders specifies that a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.

A 70 percent evaluation is warranted where 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; intermittently illogical obscure, or irrelevant speech; 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.  Id.

A 100 percent evaluation is warranted where 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; memory loss for names of close relatives, own occupation, or own name.  Id.

That portion of VA's Schedule for Rating Disabilities ("the Schedule") that addresses service-connected psychiatric disabilities is based upon DSM-IV.  38 C.F.R. § 4.130 (2012).  The 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.

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 the individual is functioning pretty well and has some meaningful interpersonal relationships.  American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994).

GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and 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 between 41 and 50 are assigned when there are 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).  Id.  

When evaluating a mental disorder, the Board 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.  38 C.F.R. § 4.126(a).  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.  Id.  The extent of social impairment is to be considered but neither the Board nor the RO shall assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  

Recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided guidance in rating psychiatric disability.  See Vazquez-Claudio v. Shinseki, ___F.3d___, No. 2012-7114, 2013 WL 1395804 (Fed. Cir. April 8, 2013).  The Board refers to this case as it aids in understanding the Board's determination with regard to whether the Veteran's cognitive impairment can be rated separately from his anxiety disorder and provides an understanding as to how the rating criteria are applied in determining what rating is appropriate for his psychiatric disability.  

In that case, the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms.  Id. at 2.  It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.  Id. at 4.  Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating.  Id. at 2.  


III.A. Separate Rating - Cognitive Impairment

The Veteran contends that he should be awarded separate ratings for his cognitive impairment and his anxiety disorder.  The Board is aware of the confusing nature of this case that gave rise to this issue.  Therefore a summary of the relevant procedural history is in order.  The Board first provides that summary and then turns to its reasons and bases for determining that the preponderance of evidence is against assigning a rating for anxiety disorder and a separate rating for cognitive impairment.  

In the June 2006 decision, the Board granted the Veteran's appeal as to the issue of entitlement to service connection for an anxiety disorder.  In determining that the appeal as to this issue must be granted, the Board found as fact that the Veteran's anxiety disorder is a consequence of head trauma incurred during service and concluded, as a matter of law, that his anxiety disorder was proximately due to an injury in service.  The RO implemented the grant of service connection for anxiety disorder in its September 2006 rating decision.  

In that June 2006 document, the Board also remanded the issue of entitlement to service connection for residuals of head injuries.  In that Remand, the Board directed the RO to schedule the Veteran for an examination to determine the nature and etiology of complaints of injuries, disorder or pain related to his head injury.  It required that the examiner state whether any diagnosed disability was related to the Veteran's December 1960 in-service fall in which he injured his head.  

VA afforded the Veteran the examination in June 2008.  The examiner did not diagnose "cognitive impairment."  The only Axis I diagnosis listed in the examination report is anxiety disorder.  In a present medical history section of the report, the examiner listed "cognitive problems" as a subset of the Veteran's symptoms, which, given that the only diagnosis was anxiety disorder, are symptoms of his anxiety disorder.  As to the history of cognitive problems the examiner stated that the Veteran cannot remember or process information correctly and cannot do simple tasks or follow directions over time.  The other symptoms listed in the present medical history section can be summarized as anxiety; obsession with health issues; mood symptoms described by the Veteran as disappointment with life, feelings of worthlessness, and agitation; a reported inability to sleep peacefully; panic attacks; obsessive thoughts; rumination; and a tendency to continuously repeat himself.  

Psychiatric examination revealed symptoms of irritability, mood disturbances, blunted affect, thought process and content deficiencies, and deficiencies in judgment, sleep, impulse control, and memory.  He was also found to have panic attacks, obsessive /ritualistic behavior, and below average intelligence.  

Other treatment records, for example those recently submitted by the Veteran of treatment at the Tampa VAMC in 2011 and 2012, do not show any symptoms different than those described earlier.  

These symptoms are either listed in the criteria found in the General Formula for Rating Mental Disorders or are like in kind to those listed.  

Following that development, the RO granted service connection for cognitive impairment in June 2008 and characterized this disability as anxiety disorder with cognitive impairment, secondary to head trauma (claimed as anxiety reaction/panic attacks).  The RO referred to March 2008 VA clinical treatment records, a statement from a private provider, a September 2002 statement by Dr. "H.Z.", and a VA examination conducted in June 2008.  In particular, the RO relied on the examiner's opinion, documented in the June 2008 examination report, that the cognitive impairment suffered by the Veteran was due to head trauma that occurred during service.  

In April 2008, contemporaneous to that June 2008 decision, , the Veteran had alleged clear and unmistakable error (CUE) in the February 1962 rating decision that had denied compensation for residuals of brain injury/ psychiatric disorder; his contention was that VA had committed CUE in not considering an implied claim for traumatic brain injury.  In an August 2009 rating decision the RO determined that the 1962 decision could not be revised because there was no CUE in that decision.  It also denied service connection for traumatic brain injury.  The Veteran did not appeal that decision as to either issue.  Hence, the Board does not have jurisdiction to address either issue.  

Although service connection for traumatic brain injury has been denied and is not before the Board, the Board's decision in this matter is informed by the definition of the term "cognitive impairment" found in 38 C.F.R. § 4.124a, Diagnostic Code 8045, which provides the rating criteria for traumatic brain injury.  That definition is therefore relevant to how the Veteran's cognitive impairment is evaluated, and is as follows:  

Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain.  Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive.  Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others.  In a given individual, symptoms may fluctuate in severity from day to day.  Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI not Otherwise Classified."  

That table, which accounts for symptoms not only of cognitive impairment but also of other residuals, includes the following "facets":  Memory, attention, concentration, executive functions; Judgment, Social Interaction, Orientation, Motor Activity, Visual Spatial Orientation, Subjective Symptoms, Neurobehavioral effects; Communication, and Consciousness.  

The RO has evaluated the Veteran's cognitive impairment and his anxiety disorder by application of the General Rating Formula for Mental Disorders found at 38 C.F.R. § 4.130.  Indeed, the General Formula for Rating Mental Disorders applies to evaluating disability due to some thirty-five different diagnosable disorders including mood disorder, anxiety disorder, panic disorder, and dementia due to head trauma.  The only mental disorders that are not evaluated under the General Formula for Rating Mental Disorders are the eating disorders anorexia nervosa and bulimia nervosa.  See 38 C.F.R. § 4.130.  

The General Formula provides examples of the kinds of symptoms that give rise to ratings ranging from noncompensable to total.  Those symptoms include memory impairment, anxiety, panic attacks, difficulty in understanding complex tasks, space, time, and place disorientation, and intermittent inability to perform activities of daily living.  As explained above, because the General Formula lists symptoms in a non-exhaustive manner it encompasses symptoms that are like in kind to those listed.  The comprehensive and non-exhaustive criteria of the General Formula takes into account all of the Veteran's symptoms of anxiety and cognitive impairment.  

The RO's grant of service connection for cognitive impairment was essentially a grant of service connection for psychiatric symptoms.  Regardless of how the RO has labeled the disability and notwithstanding that it separately granted service connection for cognitive impairment, all of the symptoms of the Veteran's psychiatric disorder are described in the General Formula for Rating Mental Disorders.  

To assign a rating for anxiety disorder and then assign a separate rating for cognitive impairment would amount to impermissibly pyramiding the ratings.  That term, "pyramiding," means evaluating the same disability under various diagnoses or evaluating the same manifestations under different diagnoses.  38 C.F.R. § 4.14.  Even if there was a separate diagnosis of a cognitive disorder, both a cognitive disorder and an anxiety disorder are psychiatric disorders the symptoms of which are all encompassed by the symptoms listed in the General Rating Formula for Mental Disorders or symptoms of like kind.  

The Board recognizes that a statement found in Amberman v Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) should be addressed.  In that case, the Federal Circuit case agreed with the Veterans Court's holding in Esteban v. Brown, 6 Vet. App. 259 (1994) as to when 38 C.F.R. § 4.14 is and is not for application  Id. at 1381.  In Esteban, a facial injury had resulted in that individual suffering disfigurement, painful scars, and muscle damage that made it difficult to chew.  Esteban, 6 Vet. App. 261.  As summarized in Amberman, "[b]ecause each diagnostic code dealt with different symptoms (cosmetic issues, pain, and difficulty chewing, respectively), the Veterans Court held that they did not constitute the "same disability" or "same manifestation," and therefore section 4.14 was inapplicable."  Amberman, 570 F.3d at 1381 (citing Esteban, 6 Vet. App. at 261-62).  The Federal Circuit agreed with the Veteran's Court's holding in Esteban that the critical element in assigning separate ratings is that none of the symptomatology of any of the conditions is duplicative or overlapping with the symptomatology of another condition.  Id.  

The statement of interest in Amberman, is "bipolar affective disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat the separately diagnosed conditions as producing only the same disability."  Id. at 1381.  In the instant case, the Board finds that, even if the Veteran's cognitive impairment, was a separate condition, assigning separate ratings would be pyramiding.  Examination of the evidence of record, as listed in Section III.B., below, shows that the cognitive impairment symptoms overlap and are duplicative of the anxiety disorder symptoms.  

For example, in the present medical history section of the June 2008 examination report, the examiner listed cognitive problems as "[c]annot remember or process information correctly; cannot do simple tasks or follow instructions over time," and in the December 2002 mental health evaluation report Dr. T.W. diagnosed generalized anxiety disorder and determined that the Veteran's immediate memory was poor and his concentration was distracted.  Additionally, in the June 2008 examination report the examiner commented that the Veteran's extremely high levels of anxiety severely impair his ability to think.  This evidence shows that his cognitive impairment symptoms overlap and are duplicative of his anxiety disorder symptoms.  

Moreover, the Veteran's 50 percent disability rating prior to October 23, 2006 and his 100 percent rating since that date were based on symptoms that are common to both cognitive impairment and the anxiety disorder.  That is, he has been compensated for disability due to anxiety disorder and cognitive impairment since the effective date of service connection.  In the September 2006 rating decision, and under the Board's analysis in section III.B. of this decision, his impaired recent memory was considered in the rating of the disability.  His short term memory problems were part of the basis for the 100 percent rating as explained by the RO in the June 2008 rating decision.  

Even assuming arguendo that service connection had been established for traumatic brain injury, the outcome of this case would not be different as far as his psychiatric disability.  Not only would 38 C.F.R. § 4.14 prevent separately rating the cognitive disorder and the anxiety disorder but the rating criteria specific to traumatic brain injury would prevent separate ratings.  Note (1) under 38 C.F.R. § 4.124a, Diagnostic Code 8045 provides as follows:  

There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code.  In such cases, do not assign more than one evaluation based on the same manifestations.  If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions.  However, if the manifestations are clearly separable, assign a separate evaluation for each condition.

Delirium, dementia, and amnestic and other cognitive disorders shall be evaluated under the general rating formula for mental disorders; neurologic deficits or other impairments stemming from the same etiology (e.g., a head injury) shall be evaluated separately and combined with the evaluation for delirium, dementia, or amnestic or other cognitive disorder (see § 4.25).  38 C.F.R. § 4.126 (d).  When a single disability has been diagnosed both as a physical condition and as a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition (see § 4.14).  Id.  

Because, the General Formula for Rating Mental Disorders specifically addresses all symptoms of the Veteran's anxiety disorder and cognitive impairment, those criteria are the proper criteria for evaluating disability due to the Veteran's service-connected psychiatric disorder, regardless of the RO's decision to explicitly grant service connection for cognitive impairment.  

Because symptoms of his cognitive impairment and anxiety disorder overlap and are duplicative of each other and the regulations just discussed prohibit evaluating the conditions separately, it would be improper to assign separate ratings for each condition.  For these reasons, the Board finds that the preponderance of evidence is against assigning separate ratings.  His appeal as to this issue must therefore be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


III.B.  Increased Rating for Period from April 29, 2002 to October 23, 2006.  

Having established that the Veteran's service connected psychiatric disability with cognitive impairment is properly evaluated under the criteria found at the General Formula for Rating Mental Disorders, the Board now turns to a discussion of the pertinent facts and application of those criteria to those facts.  

Evidence prior to May 2002 does not show meaningfully different symptoms or degree of disability than evidence found from May 2002 to October 23, 2006.  The Board has considered the Veteran's testimony as well that of those who testified on his behalf and letters provided by a massage therapist and private physicians.  That testimony does not provide evidence going to the rating criteria that is meaningfully different that the evidence found in the treatment records and a December 2002 evaluation report.  The testimony and letters provide evidence as to events that occurred many years prior to the period most pertinent to the disability rating assigned and the general state of the Veteran's psychiatric condition over long periods of time.  As such, though these items of evidence have been considered, the Board focuses on the evidence found in treatment records and the evaluation report.  

VA treatment notes document that he was first seen in the emergency room at the Tampa VAMC on May 16, 2002, with the chief complaint quoted in the record, that he had acute anxiety caused by an accident in the Navy and that he wanted medication and compensation.  At that time he reported that he had not received care through any other VA facility.  He was described as a poor historian as to psychiatric and personal history.  He reported that he received medical and psychiatric care without charge at a medical clinic managed by his son.  

During that initial visit, the Veteran reported that he had depressed mood, irritability, hopelessness, worthlessness, fatigue, poor concentration and sleep disturbances.  Those notes include results of a clinical mental status examination.  The Veteran was found to be oriented in all spheres and had full ranged affect appropriate to content of speech.  His speech volume and tone were normal but rate was rapid and continuous unless interrupted by the clinician.  Thought content was logical, goal directed, and reality based.  It was noted that the Veteran was focused on compensation issues and was angry about his disability and his answers were not always responsive to the questions but he would eventually answer the question when redirected.  He exhibited no tangentiality, loose association, or flight of ideas.  He denied hallucinations as well as homicidal and suicidal intent.  Language was expressive and receptive, insight and judgment were good.  His memory, attention and concentration were not formally assessed but appeared intact.  The clinician determined that he had a GAF of 52 at the time.  Diagnoses were panic disorder with agoraphobia, major depressive episode, benzodiazapine dependence, and to rule out bipolar disorder.  

Other VA psychiatric treatment notes within one or two months of May 16, 2002 are of record.  These include extensive notes from June 2002 outpatient treatment.  At that time the Veteran reported that he suffered from panic attacks two to three times per week.  He reported that he had over two hundred emergency room visits in the past forty years for panic attacks but denied prior psychiatric hospitalization.  Findings include that his thoughts ranged from linear to circumstantial and tangential, but were logical and goal-directed.  Speech was normal in rate, volume, and tone, and language was appropriate.  He denied hallucinations and suicidal and homicidal ideation, did appear to respond to internal stimuli but no delusions were demonstrated.  Judgment and insight were intact.  He was oriented in all spheres, recent memory was impaired, remote memory was intact, and concentration and calculation were intact.  He was diagnosed with panic disorder and a GAF of 50 was assigned.  July 2002 notes are no more favorable to his claim for a higher rating and those notes list his GAF score as 60.  

Of record is a statement signed by "H.Z.," M.D. that was submitted to the RO in October 2002.  Dr. H.Z. stated that the Veteran had been his patient for one year, that he suffered from panic attacks and depression, and that he had been on a number of psychotropic drugs in high doses for decades to control his disabling panic condition.  Dr. H.S. also stated that the Veteran had been seen by clinicians and psychiatrists and had been heavily medicated with a number of anti-anxiety drugs and anti depressant drugs and was regularly seen at the Tampa VA's mental health clinic.  In another letter, dated in September 2002, Dr. H.Z. reported that he had been treating the Veteran for medical and psychiatric problems for one and one-half years and that he was permanently disabled and unemployable due to his medical conditions.  In a letter signed in November 2002, Dr "L.A." stated that the Veteran was under care for acute anxiety and panic attacks and suffered from high blood pressure and high cholesterol.  Dr. L.A. stated that that in his opinion the Veteran was completely and permanently disabled.  He stated that the Veteran was unemployable because of his medical conditions.  

Also submitted was a letter signed by "M.O.," who self identified as a licensed massage therapist.  M.O. stated that the Veteran was a former patient and known to have panic attacks.  M.O. opined that the Veteran was unable to engage in work that involved other people and in M.O.'s opinion he was completely disabled.  

In December 2002 the Veteran underwent a mental health evaluation by Dr. "T.W.," apparently in connection with a claim for Social Security benefits.  Dr. T.W. stated that the Veteran's chief complaint was that he has acute anxiety, stress, and depression two or three times per week, and that when he has the acute anxiety he lays in bed for days and thinks he is going to have a heart attack.  Other reports from the Veteran and his spouse included that he had a short attention span and was arguementive in that he started arguments with customers at her place of business.  The Veteran reported that he had been hospitalized about a day at a time for anxiety approximately 75 times.  He also reported that he had difficulty concentrating in a work setting, that he had no friends.  

Mental status examination indicated that his immediate memory was poor, his concentration was distracted, insight fair, judgment poor, thought processes were confused, mood was irritable, depressed, elevated, anxious, angry, and fearful.  His recent memory was adequate, his longterm remote memory was poor.  Diagnoses were generalized anxiety disorder, panic disorder without agoraphobia, and to rule out hypochondriasis.  Dr. J.W. determined that his current GAF was 42.  

VA psychiatry notes from July 2006 include findings that he was alert, oriented times three, had normal rate and volume of speech, mood was stable and affect was full range, he denied homicidal or suicidal ideation, no thought disorder was noted thinking was organized, goal directed, and future oriented, his insight and judgment were intact.  Diagnoses were benzodiazapine dependence, panic disorder with agoraphobia, major depressive episode, and rule out posttraumatic stress disorder and bipolar disorder.  That psychiatrist assigned a GAF score of 60.  

This evidence tends to show that the Veteran's service-connected psychiatric disorder does not approximate the schedular criteria for a rating higher than 50 percent for any period between April 29, 2002 and October 23, 2006.  His panic attacks and depression are not described as continuous, he was always found to be spatially oriented, there is no indication of obsessional rituals - in this regard, the description of him laying in bed for days with thoughts of a heart attack is reported in the relevant records more in terms of anxiety than in terms of an obsessional ritual.  The Board finds that his spouse's report that the Veteran argues with her customers is not evidence of impaired impulse control as contemplated by the 70 percent criteria as it is of a different severity than what is described in the 70 percent criteria.  The report is not of symptoms of the same severity as the example of unprovoked irritability with periods of violence.  It has not been ignored by the Board that Dr. T.W. assigned a GAF score of 42.  However, Dr. T.W.'s findings are not of symptoms of the same duration, severity, and frequency as those listed in the 70 percent criteria.  Although the Veteran has reported that he has not worked in many years and that he has no friends, those reports, standing alone do not establish that he is unable to establish and maintain effective relationships.  Evidence tending to show that he is able to establish and maintain effective relationships are his relationship with his spouse and those who testified on his behalf.  

VA psychiatry notes in September 2011 document the Veteran's report of difficulty thinking and difficulty with activities with onset within six months of separation from active service.  Those records, however, do not provide evidence that places his psychiatric symptoms at that time approximately within the criteria for a rating higher than 50 percent.  

Review of evidence pertinent to the time frame of interest shows that his service-connected psychiatric disability does approximate the criteria for a 50 percent rating.  His affect, panic attacks more than once per week, speech patterns, mood disturbances, and difficulty in establishing and maintaining effective work relationships and, to an extent, social relationships, are symptoms consistent with the criteria found for the 50 percent rating.  The Board does not find that his symptoms approximate those listed in the 70 percent criteria or are symptoms of similar duration, frequency, and severity as those described for the 70 percent rating, for any period on appeal.  

Also considered by the Board is whether referral is warranted for a rating outside of the schedule.  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1) (2012).  The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  38 C.F.R. § 3.321(b).  

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.  If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.  

Here, the first prong of the Thun analysis is not met.  All of the Veteran's symptoms are contemplated by the non-exhaustive criteria found at the General Formula.  As discussed above, his symptoms are either specifically listed under the General Formula or are of like kind to those listed.  His disability level is also reasonably contemplated by the schedular criteria.  In this regard, the schedule provides for disability significantly more severe than that demonstrated by the evidence of record for the applicable time period.  Because the schedular rating criteria reasonably describe his disability level and symptomatology, the Board declines to remand his case for referral for extraschedular consideration under 38 C.F.R. § 3.321(b).  

In summary, the preponderance of evidence is against assigning a schedular rating higher than 50 percent for the Veteran's service-connected psychiatric disability for any period prior to October 23, 2006 and against referral for extraschedular consideration.  Therefore, his appeal as to this issue must be denied.  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to an effective date prior to April 29, 2002, for the award of service connection for anxiety disorder with cognitive impairment secondary to in-service head trauma, is denied.  

Entitlement to a separate, compensable evaluation for cognitive impairment is denied.  

Entitlement to an initial evaluation in excess of 50 percent for anxiety disorder with cognitive impairment secondary to in-service head trauma for the time period prior to October 23, 2006, is denied.  


REMAND

A remand is necessary so that the AOJ can develop and adjudicate, in the first instance, the issue of whether TDIU is warranted for any period on appeal.  

TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities.  38 C.F.R. § 4.16(a).  If this is the case and certain regulation defined percentages are met, TDIU may be awarded on a schedular basis.  Id.  In this case those percentages are met.  All of the Veteran's service connected disabilities arise out of a common accident, the combined percentage is 70 percent from April 29, 2006 to October 23, 2006, and one of those conditions was rated 50 percent disabling for that period. 

In a July 2002 rating decision, the RO denied the Veteran's April 2002 claim of entitlement to TDIU on the basis that he had no disabilities for which service connection had been established.  In October 2002, the RO received a statement in which Dr. H.Z. stated that the Veteran is unemployable due to "those medical conditions."  In that letter, Dr. H.Z. stated that the Veteran was under his care for medical and psychiatric problems and had reported to him that he received severe back and head injuries during his active service.  Dr. H.Z. also stated that the Veteran was treated by VA for high blood pressure and panic anxiety.  In a letter dated in November 2002, "L.A.," M.D. stated that the Veteran was under treatment for acute anxiety and panic attacks and he suffered from high blood pressure.  Dr. L.A. concluded that the Veteran was completely and permanently disabled.  

On April 29, 2002, the Veteran filed his claim to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder.  Dr. H.Z.'s letter was received after that claim was filed and refers to psychiatric as well as non-psychiatric conditions as rendering him unemployable.  Therefore the TDIU issue is part of the claim of entitlement to service connection for a psychiatric disability.  See Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).  In the instant case, the Veteran has more than one service-connected disability and the letters just described refer to another condition, high blood pressure, for which service connection has not been established, in the context of unemployability.  

Here, the RO has not addressed the issue of entitlement to TDIU as it has arisen since the July 2002 decision.  There is insufficient evidence for the Board to determine if the Veteran was unemployable during the relevant period on appeal or to determine what disability or disabilities render him unemployable if he is unemployable.  For this reason, a remand is necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

On remand, the AOJ must send the Veteran notice relevant to establishing entitlement to TDIU, afford the Veteran an examination to determine if and when he became unemployable and, if applicable, the disability or disabilities that cause the unemployability.  

Accordingly, the case is REMANDED for the following action:

1.  Send a letter to the Veteran that provides him with proper notice as specified at 38 C.F.R. § 3.159, as to establishing entitlement to TDIU.  

2.  After allowing a reasonable time for the Veteran to respond to the notice letter, ensure that the Veteran is scheduled for an appropriate VA examination to determine whether disability or disabilities have rendered him unemployable, and, if so, when that unemployability began and what disability or disabilities caused his unemployability.  

The claims file should be provided to the examiner, the examiner should review the claims file in conjunction with the examination, and the examiner should annotate his or her report as to whether the claims file was reviewed.  A complete rationale must be provided for all conclusions reached by the examiner.  The examiner is asked to accomplish the following:  

(a)  Provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected disability or disabilities alone (such disabilities acting either separately or in concert with each other) are of such severity to have rendered him unable to secure and follow a substantially gainful occupation during any time period since April 29, 2002.  

(b)  If the examiner answers the question specified at (a) in the affirmative, the examiner is asked to provide an opinion as to precisely which disability or disabilities have resulted in his inability to secure and follow a substantially gainful occupation.  

(c)  If the examiner answers the question specified at (a) in the affirmative, the examiner is asked to provide an opinion as to when the Veteran first was unable to secure and follow a substantially gainful occupation due to service-connected disability or disabilities.  

If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question.  

3.  Upon completion of the above, readjudicate the issue of entitlement to TDIU.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue.  An appropriate period of time should be allowed for response by the Veteran and his representative.  Thereafter, the case should be returned to the Board for further appellate consideration, if in order.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs