Citation Nr: 1318217 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-38 128 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating greater than 10 percent for anxiety with insomnia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in January and July 2009 by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Throughout the appeal period, the Veteran's anxiety with insomnia has resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. CONCLUSION OF LAW A disability rating greater than 10 percent for anxiety with insomnia is not warranted. 38 U.S.C.A. §§ 1155, 5107 West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his anxiety with insomnia causes greater impairment than is reflected by the 10 percent disability rating currently-assigned. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was informed of these elements with regard to his claim for service connection in June 2008 and again in December 2008, prior to the initial adjudication of the matter on appeal. The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the disability rating assigned by a RO following an award of service connection. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006). With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate with regard to the issue decided herein. The examination report relied upon herein was predicated on a review of the claims folder and the relevant medical records contained therein; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms. The examiner considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Service treatment records, private medical records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Because he has perfected an appeal as to the assignment of the initial rating for PTSD following the initial award of service connection, the VA is required to evaluate all the evidence of record reflecting the period of time between the effective date of the initial grant of service connection until the present. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under the governing regulatory rating criteria, anxiety is rated under a "General Rating Formula for Mental Disorders". 38 C.F.R. § 4.130, Diagnostic Code 9400. The pertinent provisions of the General Formula are as follows: Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. [10 percent] 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). [30 percent] Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. [50 percent] Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. [70 percent] 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. [100 percent] 38 C.F.R. § 4.130. The psychiatric symptoms discussed above are not exclusive; they are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Put another way, the severity represented by those examples may not be ignored. Entitlement to a particular disability rating requires sufficient symptoms of the kind listed in the requirements for each disability level, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). All diagnoses of mental disorders must conform to the psychiatric standards set forth in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, The American Psychiatric Association (1994), (DSM-IV). 38 C.F.R. § 4.125. Historically, the Veteran had mild anxiety and insomnia on occasion during service. Service connection for generalized anxiety disorder accompanied by insomnia was granted in a January 2009 RO decision. A noncompensable disability rating was assigned. The Veteran disagreed with the disability rating assigned and after obtaining copies of private treatment records dated in 2008, the RO increased the disability rating to 10 percent. In a September 2009 statement, however, the Veteran indicated he desires a higher disability rating. The 2008 psychologist records essentially reflect several visits with a psychologist in August and September for the purpose of dealing with a particular workplace situation as it affected the Veteran's mental health. At that time, he reported having sleeplessness and excessive worry. He occasionally took a sleeping pill, with no side effects. He was trying to decide whether to accept a new position in the workplace. The records reflect that various stressful issues were discussed, and the Veteran was able to clarify his expectations and to address his negative thinking patterns. The psychologist assigned a global assessment of functioning score of 59. The last entry in the psychologist's records reads, "Case closed after this session." The Veteran underwent a VA examination for purposes of compensation in October 2008. The Veteran reported that although he had taken Paxil and Ativan during service, he had not taken any medication for his anxiety symptoms since his retirement. He reported the August and September treatment described above, and he stated that his current difficulty was primarily the insomnia. The examiner noted that the Veteran was not in acute distress during the interview. He seemed tense but his mood appeared to be within normal limits. He was alert, oriented, relevant, and coherent during the interview. There were no evident signs of psychosis or other mental disorders. He did not exhibit suicidal or homicidal thinking. There was no impairment of his thought processes. He related his experiences, problems, and symptoms in a seemingly candid and sincere manner. The examiner noted that the Veteran appeared to have episodic anxiety related to situational factors over a period of years. His insomnia appeared to be his primary symptom in association with the anxiety episodes, and he appeared to manage his symptoms well. The examiner concluded the report with diagnoses of "anxiety disorder, not otherwise specified, by history, and insomnia associated with anxiety. A GAF of 75 was assigned. The assignment of a Global Assessment of Functioning score of 59 represents the assessments of mental health professionals that the veteran has "moderate symptoms or moderate difficulty in social, occupational, or school functioning." By contrast, a Global Assessment of Functioning score of 75 represents "no more than slight impairment in social, occupational, or school functioning," manifested by transient and expectable reactions to psychosocial stressors. DSM-IV. Upon review, the Board determines that the currently-assigned 10 percent disability rating is more nearly analogous to the Veteran's symptomatology as reflected in the available post-service medical records, and in his own written statements. We observe that the Veteran has not reported any further mental health care since the 2008 counseling, and he does not require medication, other than occasional sleeping pills, for control of his symptoms. The divergent Global Assessment of Functioning scores reflected above, however, establish that the Veteran's episodic anxiety attacks do have a measurable impact upon him and his overall level of functioning. It would appear that after the August and September episode of anxiety, he recovered fairly quickly to a point where he manifested no more than slight impairment in social and occupational functioning, as reflected by the greatly improved Global Assessment of Functioning score assigned one month later by the VA examiner. In short, his symptom picture is reflective of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, thus neatly satisfying the criteria for a 10 percent disability rating. Mauerhan; Vazquez-Claudio. Symptomatology analogous to the greater level required for the assignment of a 30 percent disability rating is simply not shown in the evidence of record. In particular, we note that the Veteran is functioning without medication or mental health treatment at the moment, that he is maintaining a high-level executive position in the private sector, and that he appears to be stable in this regard. Furthermore, there is no basis in the evidence of record to support the assignment of a staged disability rating. Although the 10 percent disability rating is supported in part by the records reflecting his most recent episode of anxiety, even this particular episode taken alone does not appear to warrant the assignment of a disability rating greater than 10 percent. When viewed in conjunction with the proportionately much greater periods of time when the Veteran functions with lesser levels of anxiety, a 10 percent disability rating overall is the best fit. The preponderance of the evidence is against the award of a disability rating greater than 10 percent for anxiety with insomnia. The appeal is therefore denied. Extra-schedular consideration Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the rating schedule is sufficient. See 38 C.F.R. § 4.20, 4.27. For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings: To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, [C & P], upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b). As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry." Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Anderson v. Shinseki, 22 Vet. App. 423 (2009). In this case, the Veteran's mild and transient anxiety symptoms are covered in the schedular criteria set forth above; there is no indication that the schedular criteria fail to contemplate the Veteran's level of disability or symptomatology; as such there is no basis for referring this case for consideration of an extra-schedular rating. ORDER An initial disability rating greater than 10 percent for anxiety with insomnia is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs