Citation Nr: 1318943 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-03 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a rating in excess of 50 percent for generalized anxiety disorder prior to January 18, 2011. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to January 18, 2011. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who had active service from September 1989 to March 1990 and from October 1990 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file was subsequently transferred to the jurisdiction of the Albuquerque, New Mexico, RO. In December 2010, the case was remanded for additional development. In February 2012, the Veteran was awarded a 100 percent schedular rating for his generalized anxiety disorder, effective January 18, 2011; consequently the matter of the rating from that date is not before the Board. The claims are characterized to reflect the remaining benefits sought. A February 2012 VA Form 9 in the record suggests that the Veteran may have initiated an appeal (and requests a Travel Board hearing) regarding recoupment of overpayment of VA compensation benefits. As the status of this matter is unclear from the record [to include the claims file and Virtual VA], as it apparently is being separately processed by an Agency of Original Jurisdiction,, it is referred to the RO for clarification and any appropriate action. As a final preliminary matter the Board notes that there is a due process deficiency in the February 2012 rating decision and supplemental statement of the case (SSOC) in that they do not address the matter of entitlement to a rating in excess of 50 percent for generalized anxiety disorder prior to January 18, 2011 (the effective date assigned for the grant of a 100 percent schedular rating therein), but instead indicate that the grant represents a total grant of benefit sought (the SSOC is limited to the issue of entitlement to a TDIU rating, which matter is moot for the period from January 18, 2011). A "staged" increase does not represent a full grant of the benefit sought. Given the disposition below, however, the Board finds the error harmless (and not requiring corrective action). FINDINGS OF FACT 1. It is reasonably shown that throughout the appeal period prior to January 18, 2011 the Veteran's generalized anxiety disorder has been manifested by symptoms productive of total occupational and social impairment. 2. As this decision grants a total rating for generalized anxiety disorder for the entire evaluation period prior to January 18, 2011 there is no controversy for the Board to address with respect to the matter of a TDIU rating for such period. CONCLUSIONS OF LAW 1. A 100 percent schedular rating is warranted for the Veteran's generalized anxiety disorder for throughout the period under consideration (i.e., prior to January 18, 2011). 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.130, Diagnostic Code (Code) 9400 (2012). 2. The Board's grant of a total schedular rating for the entire period (prior to January 18, 2011) under consideration renders moot the matter of entitlement to a total rating based on individual unemployability for such period. 38 U.S.C.A. §§ 7104, 7105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Inasmuch as the full benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist oversight is harmless. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including the evidence available through Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.) Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Disability ratings are determined by applying the criteria set forth in 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claims for increase were received in April 2007, the period for consideration is from April 2006 until the present. Generalized anxiety disorder is rated under the General Rating Formula for Mental Disorders (General Formula). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9400. The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his generalized anxiety disorder. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence of record reveals psychiatric diagnoses other than generalized anxiety disorder (cocaine and alcohol use for which direct service connection is prohibited (38 U.S.C.A. § 105(a), 1110) and personality disorder which is not a compensable disability without superimposed acquired psychiatric disability (38 C.F.R. §§ 3.303(c), 4.9.)) However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In the instant case, the examiners have generally not distinguished symptoms due to the Veteran's generalized anxiety disorder from those due to other, co-existing and nonservice-connected, psychiatric disability. Therefore, for the limited purposes of this appeal only, the Board will consider all psychiatric symptoms shown as due to the service-connected generalized anxiety disorder. The Veteran's claim for an increased rating for generalized anxiety disorder was received by VA in April 2007. VA treatment records starting in April 2006 show the Veteran received ongoing psychiatric treatment. His GAF scores ranged from 45 in May 2006 to 50 in December 2006. 2007 VA treatment records show improvement in the Veteran's GAF score to 60 in January; however, the score was 50 to 55 during the rest of the year. These records show continued complaints of panic attacks and suicidal ideation. He was admitted to the domiciliary program in March 2007. He reported that he had resumed drinking 8 beers per day "out of boredom" and complained of a lot of anxiety because he was "supposed to be marrying [his] girlfriend but [he] was not sure." The Veteran's GAF scores were 50 during this period. Four days after his March 2007 discharge from the domiciliary program, the Veteran sought treatment for complaints of panic attacks and feeling like he had to leave wherever he was. He was sleeping too much (10-12 hours at night and napping during the day) and experienced 2-4 panic attacks per day, lasting 1/2 hour with symptoms of "muscles tightening, feeling like [he] can't breathe, feeling like [he] has to leave the situation." He also reported that, at times, he has to get out of the car he is riding in or leave a store and that police have been called when he is in stores because he acts so strangely. His GAF score was 60. He complained that things were "going 'horribly'" in May 2007 and he wanted to "kill himself and others" in December 2007. A May 2007 VA examination report notes the Veteran's complaints of daily panic attacks which last for hours, leave him feeling exhausted and sometimes cause him to sleep for 2-3 days. He also reported problems with mood swings, paranoia (particularly at night when he sleeps with a knife by his door), and daily thoughts of suicide. He described himself as a loner, complained of difficulty having stable relationships, and having significant fears of abandonment and low mood. He reported being unable to work becaues he "freaks out." It was noted that the Veteran's drug and alcohol use led to numerous legal charges, and that he frequently gets into fights. He reported 3 DUI (driving under the influence) charges, most recently in 2006, and being arrested "more times than he can count because of fighting." On mental status examination, the Veteran was "somewhat dramatic in his presentation style," his speech was slightly rapid, thought content was negative for active lethality and he had chronic suicidal thought but no active intent or plan. He reported some poorly defined paranoia but no overt auditory or visual hallucinations or other psychotic symptoms. Psychomotor activity was mildly increased, insight and judgment were both impaired and assessment of intellect was average. The diagnoses were active alcohol and cocaine dependence; anxiety disorder, not otherwise specified, versus substance-induced mood disorder; possible cyclothymic disorder by history, and borderline personality disorder. The GAF score assigned was 58. The examiner opined that the Veteran's substance abuse and personality disorder result in the majority of his decreased global assessment of function. The examiner also noted that, while the Veteran endorsed feeling anxious and having anxiety symptoms, he did not have symptoms that are consistent with true panic attacks or exhibit signs of anxiety during the evaluation or on review of other evaluations. Rather, the examiner noted that the Veteran's symptoms were more consistent with his personality disorder. The examiner also noted that, although there was no reason why the Veteran could not manage his funds, it was "not necessarily surprising" that his mother manages his funds because "he tends to make inappropriate decisions." May 2008 VA treatment records show the Veteran reported feeling like "strangling people on the bus the last couple of days" and being angry at his VA providers (for writing that he does not take a shower or groom himself). These records also show that VA security was notified that the Veteran made threatening statements towards VA personnel. In November 2008, the Veteran reported attempting to take a computer course during which he became extremely anxious and had two panic attacks. He reported that he was nervous, vomitted, and "was confined to his bed for three weeks due to intense GI upset and vomiting" which he attributed to anxiety. The Veteran continued to receive mental health treatment during 2009 and 2010. On January 19, 2011 VA examination, the examiner noted the Veteran has a history of inappropriate (violent and aggressive) behavior; i.e., he attacked his 17 and 20 year old daughters in 2010 because they were making noise, biting one in the neck, and is easily angered and will quickly become involved in verbal altercations with others in public. He also reported that he has not driven since 1997 because of "road rage" and his license was suspended because of "too many tickets." The Veteran reported that he was unemployed for the past 10 to 20 years because he "experienced anxiety at work" because his job (as a forklift driver) had been very stressful. "He was often tardy or absent [from work] because he 'felt impending doom' with repect to his job." The diagnoses were generalized anxiety disorder, alcohol dependence, cocaine dependence (he had a positive drug screen for cocaine on March 12, 2007, follow-up urine toxicoloy on March 21, 2007 was negative, and no further follow-up toxicology screens were noted in the records), and borderline personality disorder. Regarding generalized anxiety disorder, the examiner noted: Veteran's history indicates a long-standing pattern of generalized anxiety disorder, beginning in childhood and worsening over time. Prior evaluators have suggested that military service may have exacerbated the pre-existing anxiety condition. Veteran continues to demonstrate excessive anxiety and worry everyday regarding a number of activities, such as being in public, interacting with others, or attending appointments for example. He finds it difficult to control the worry, and has utilized maladaptive coping strategies, such as substance abuse, violence/aggression, avoidance, and suicidal ideation. The anxiety are associated with feeling restlessness [sic], fatigue (which may last for a couple of days according to the veteran), poor concentration (to the point that veteran feels he cannot manage his own finances or accurately read material and relies on others to assist), irritability (with subsequent anger and aggression), and sleep disturbance (difficulty falling asleep, staying asleep and was restless unsatisfying sleep.[)] The generalized anxiety disorder causes clinically significant distress and impairment in social, occupational, and other important areas of functioning such as activities of daily living. Although the veteran endorsed what he referred to as a panic attack, his descriptions of symptoms do not fit the typical descriptions of panic attacks, which is consistent with prior evaluations. Regarding alcohol dependence, the examiner noted: Review of VA medical records indicates the veteran has a history of significant problems with alcohol, including legal problems associated with DWI and fighting while intoxicated, and reported attendance of AA meetings and substance abuse treatment programs. Veteran continues to drink a 6 pack of beer a few days a week per his report. However, review of records suggest that he has a pattern of denying or minimizing his use, suggesting his endorsement of use at this exam may or may not be accurate. Veteran did report that it has been at least a few years since his last alcohol related legal problems occurred. Records suggest that the veteran drinks alcohol to help him cope with boredom, anxiety, and stress. Regarding borderline personality disorder, the examiner noted: Prior C&P examiners and mental health providers have diagnosed the veteran with borderline personality disorder. Review of records and clinical interview indicates that the veteran has demonstrated a pervasive pattern of instability in interpersonal relationships, self-image, and affects and is marked by impulsivity beginning by early adulthood, and present in a variety of contexts. Veteran has exhibited a pattern of unstable and intense interpersonal relationships and has had great difficulty maintaining relationships. He shows remarkably and persistently unstable self image, with records indicating sometimes he hates himself and sometimes he loves himself. A history of impulsivity in areas that are potentially self-damaging is noted, such as violence/aggression, substance abuse, reckless driving while intoxicated, and compulsive eating. Recurrent suicidal behavior is noted in his history, with multiple psychiatric hospitalizations, persistent and recurrent suicidal ideation, and reported history of self mutilating behavior (i.e. cutting behaviors). Affective instability is noted, with reported variable and fluctuating mood with rapid mood swings consisting of irritability, anxiety, and dysphoria. Veteran demonstrates chronic feelings of emptiness, feeling as though people do not understand him or understand his anxiety. Inappropriate and intense anger is reported with a history of violent behavior most recently against his daughters in October 2010. The examiner further explained that "[a]ll of the above described symptoms for Generalized Anxiety Disorder and Borderline Personality Disorder are present to some degree on a daily basis, are moderate to severe in nature according to the veteran, and can occur without a known precipitant according to the veteran." Alcohol dependence was "present daily" and cocaine dependence appeared to be in remission, "assuming that the veteran provided accurate data that he is no longer using cocaine." The GAF score was 45. In finding that there is total occupational and social impairment due to mental disorder signs and symptoms, the January 2011 examiner explained: There is a history [of] longstanding unstable interpersonal relationships with others, with regular expression of violent and aggressive behaviors towards others, which is often unprovoked by others. For instance, veteran demonstrated increasingly maladaptive coping strategies at work, citing increased anxiety, and aggression towards coworkers, which led to tardiness, absences, and termination. He also endorsed strained relationships with family members, and violently impulsively attacked his 2 daughters in October 2010. Veteran lives alone and states that he can't have relationships because he is easily irritated with people because they "start asking questions" because they "know something's wrong with me because of the way I act", meaning he may cry or have angry outbursts. He moved to New Mexico from Nebraska because too many people knew who he was and what his "problems" were, so he felt compelled to move away from all of these people. ... Veteran has a long history of alcohol related legal problems as well. He experiences frequent suicidal ideation, though denying any current plans or intent. Records suggest veteran has a long-standing history of suicidal ideation, with attempts and subsequent hospitalizations, along with a history of self mutilating behaviors (i.e. cutting). Veteran's mood is consistently and persistently anxious, angry, irritable, and dysphoric, with rapid mood swings. Regarding the various psychiatric diagnoses, the examiner explained that "[t]he diagnosis of borderline personality disorder significantly factors into the veteran's psychosocial impairment, and makes it difficult to disentangle and distinguish which symptoms are solely due to generalized anxiety disorder versus borderline personality disorder." Based on these findings, a February 2012 rating decision granted a 100 percent rating for generalized anxiety disorder effective January 18, 2011 (the date of the VA examination.) VA treatment records throughout the appeal period reflect generalized anxiety symptomatology largely similar to the findings noted on the January 18, 2011 examination. Further, the explanation of rationale for the finding that there is total occupational and social impairment due to mental disorder signs and symptoms reflects a longitudinal review of the Veteran's mental health history and, citing to the clinical evidence, suggests that his total occupational and social impairment has been ongoing. The Board finds that, throughout the relevant appeal period, the Veteran, his treating VA mental health personnel, and the VA examiners have reported he has symptoms associated with generalized anxiety disorder consistent with total occupational and social impairment, due to such symptoms as grossly inappropriate behavior and persistent danger of hurting himself or others or other symptoms of similar gravity. Consequently, the Board finds that the criteria for a schedular 100 percent rating are met throughout the evaluation period. The Board finds no reason to question the credibility of the Veteran's own accounts; they are consistent with reports by his treating mental health personnel and the VA examiners. As the symptoms described meet (or at least approximate) the schedular criteria for a 100 percent rating under Code 9400, the Board finds that such rating is warranted throughout the appeal period. 38 C.F.R. § 4.7. As a 100 percent schedular rating for generalized anxiety disorder is being granted for the entire period for which a TDIU rating is sought, the matter of entitlement to a TDIU rating (i.e., a total rating under alternate criteria) during this period is rendered moot by this decision. ORDER A 100 percent rating is granted for the Veteran's generalized anxiety disorder for throughout the appeal period (prior to January 18, 2001), subject to the regulations governing payment of monetary awards. The appeal seeking a TDIU rating is dismissed as moot. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs