Citation Nr: 1320483 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-04 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for chronic adjustment disorder with alcohol abuse in remission, prior to January 17, 2013. 2. Entitlement to an initial evaluation in excess of 30 percent for chronic adjustment disorder with alcohol abuse in remission, beginning January 17, 2013. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2005 to December 2008, with service in Iraq from March 2007 to May 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The matter was previously before the Board in September 2012, at which time the issue of entitlement to a higher initial rating for chronic adjustment disorder, as well as the issue of entitlement to service connection for the residuals of a left ankle injury, were remanded for development. While on remand, the Veteran was granted service connection for a left ankle injury, and was granted an increased, 30 percent rating for chronic adjustment disorder, effective January 17, 2013. Concerning the rating for chronic adjustment disorder, as this increase did not constitute a full grant of the benefits sought, the increased initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The service connection grant is a complete grant as to that issue on appeal. The Veteran requested a hearing in conjunction with his appeal, and a hearing was scheduled in September 2011. The Veteran failed to appear for that hearing, however, and his request is considered withdrawn. 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. Prior to January 17, 2013, the Veteran's chronic adjustment disorder with alcohol abuse in remission was not productive of occasional decrease in work efficiency and/or intermittent periods of inability to perform occupational tasks. Although the disorder produced symptoms of depressed mood, anxiety, panic attacks one or two times per year, and chronic sleep impairment, those symptoms did not create the type of overall disability picture described by the criteria necessary for a 30 percent rating. 2. Beginning January 17, 2013, the Veteran's chronic adjustment disorder with alcohol abuse in remission was not productive of reduced reliability and/or productivity. He did not demonstrate symptoms of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once per week, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. CONCLUSIONS OF LAW 1. Prior to January 17, 2013, the criteria for an initial rating for chronic adjustment disorder with alcohol abuse in remission, in excess of 10 percent, have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.10, 4.130, Diagnostic Code 9440 (2012). 2. Beginning January 17, 2013, the criteria for an initial rating for chronic adjustment disorder with alcohol abuse in remission, in excess of 30 percent, have not been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's 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 a claim 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 and 3.326(a) (2012). The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice is needed under VCAA. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and 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. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The results of an August 2009 VA examination, as well as the January 2013 examination requested by the September 2012 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where 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. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511- 12 (1995). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 a rating 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). VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. §§ 4.125, 4.130. The Veteran's service-connected chronic adjustment disorder, with alcohol abuse in remission, is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9440 (2012). This disability is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. A 70 percent disability 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. Id. A 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once 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. Id. The criteria for a 30 percent rating are met when there is a showing of 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 normal conversation), 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). Prior to January 17, 2013, the Veteran's chronic adjustment disorder has been rated as 10 percent disabling. A 10 percent rating is warranted with symptoms 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, or; symptoms controlled by continuous medication. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. In evaluating the Veteran's chronic adjustment disorder, the Board has considered the Global Assessment of Functioning (GAF) scores assigned during the appeal period. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV; 38 C.F.R. § 4.125 (2011). Relevant to the present inquiry, a GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. VA provided a psychiatric examination for the Veteran in August 2009. At the time of the examination, the Veteran maintained a long-distance relationship with his girlfriend. He reported that while in service, he used cocaine and was arrested on a charge of driving while intoxicated due to alcohol use. He described consuming alcohol one to two times per week. Following his separation from the military, the Veteran worked part time while attending a technical college. His plan at the time of the examination was to pursue full-time college studies in the following semester. The Veteran described a panic attack that had occurred when he went out drinking while visiting his girlfriend. The examiner noted an "entirely unremarkable" mental status examination upon formal testing. The Veteran had excellent reality testing, orientation, immediate and short-term recall, attention and concentration, calculation ability, abstract thinking, capacity to perceive the similarity/differences between two concepts, and social judgment. The examiner determined that the Veteran demonstrated symptoms consistent with posttraumatic stress disorder, but that the disorder was best characterized as an adjustment disorder with mixed features of depression and anxiety. He had symptoms of anxiety and depression, heightened arousal (sleeping difficulties and hyper vigilance), and persistent reexperiencing of events, but did not endorse three or more symptoms of persistence avoidance. He continued to socialize with other people on a regular basis, including his participation in poker groups and his relationship with his girlfriend. The Veteran was not significantly affected at the time of the examination by any substance abuse issues. The examiner opined that the Veteran's adjustment disorder caused mild impairment in his overall social and vocational functioning. He assigned a GAF score of 66, as related to the chronic adjustment disorder with mixed features of depression and anxiety. During treatment in July 2009, the Veteran reported that he was not sleeping well, and that he experienced nightmares and dreams of being under attack. He had symptoms of hyperalertness, vigilance, and feeling uncomfortable in crowds. He felt depressed and angry, and at times felt like crying. He was seen at the Vet Center in July 2009, at which time, on mental status evaluation, he was friendly and cooperative in manner, but anxious. His intelligence was average. The Veteran's speech was rapid and pressured, but he was fully oriented to time, place, and person. Memory function was normal, affect was labile, and motor activity was tense. His judgment was impaired. There was no evidence of delusions, disorganized thinking, or hallucinations, and he did not have suicidal or homicidal thoughts. He reported anxiety with at least one panic attack, intrusive thoughts, sleep disturbance with nightmares, and emotional disturbance with sadness and crying. He experienced anxiety in crowds and hyperalertness in most situations. In August 2011, the Veteran began treatment with a VA social worker. At his initial assessment, the Veteran indicated that his primary concerns were issues of alcohol abuse/dependence and dysphoria. He described symptoms of hypervigilance, sleep disturbance, and anger issues. At the time of the assessment, he lived in an apartment at his parents' home, with whom he had a supportive relationship. He had a couple of friends, and attended church. He had attained an associate's degree, and was employed full time as a field service representative for his company. On examination, the Veteran was appropriately dressed and groomed. He answered questions appropriately, and was fully alert and oriented. He presented with a flat affect. The Veteran reported drinking three or more alcoholic drinks on two to three occasions per week. He felt that his alcohol usage had caused problems with relationships and pointed out that it had led to his discharge from the military. According to a September 2011 social work note, the Veteran was focused on setting goals for his future. He had been drinking less overall, but acknowledged still drinking too much on occasion. On mental status examination, he was alert and fully oriented, with a euthymic mood, and congruent affect. His behavior was organized and cooperative, but he displayed minimal eye contact, with a normal voice rate, rhythm, and volume. His hygiene and grooming were good, his thought processes were linear, and his thought content was appropriate to the topic. His memory and cognition appeared intact. There was no evidence of psychosis, and no suicidal or homicidal ideation. The examiner assigned a GAF score of 65. When he visited the social worker in December 2011, his mood was dysphoric (with a congruent affect), but otherwise his mental status examination provided similar results to that of September 2011. That month, he informed the examiner that he continued to often drink more than he intended. The following month, in January 2012, the Veteran's mood was again euthymic, and his eye contact was considered "fair," rather than "minimal." His GAF score remained at 65. Subsequent social work reports through 2012 demonstrate nearly identical reported symptomatology. Notably, in August 2012, the Veteran's eye contact had again improved to the point of being considered "good." VA provided the Veteran with a second examination on January 17, 2013. The examiner noted a diagnosis of adjustment disorder with mixed anxiety and depressed mood, as well as alcohol abuse in sustained partial remission, and cocaine abuse in sustained full remission. The Veteran, per the examiner, suffered from occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. Notably, the examiner could not differentiate the level of impairment caused by the adjustment disorder and alcohol abuse, noting that the alcohol abuse, in partial remission, was seen as secondary to the service-connected adjustment disorder, because the Veteran's alcohol usage was part of an attempt at self-medication. Upon clinical review, the examiner noted that the Veteran was not prescribed any medications for mental health purposes. He experienced depressed mood, heightened irritability, anxiety, panic attacks that occurred weekly or less often, and difficulty establishing and maintaining effective work and social relationships. It was the examiner's opinion that the Veteran continued to experience persisting nightmares and intrusive thoughts related to his original combat stressors. His periodic anxiety attacks included sweating, palpitations, fear of losing control, and excessive worry, but those attacks were occurring with less frequency, only once or twice per year. The Veteran's depression recurred every other week for several days, and caused feelings of isolation, reduced capacity for enjoyment, and low energy and motivation. Those symptoms of depression and anxiety continued to produce mild social and work dysfunction. Also, although he had good relationships with his family, his desire to interact with family was reduced during heightened depression. His employment was only mildly impaired by mental health issues, largely because he was able to work alone most of the time. The Veteran was employed as an "office manager," but was the only person at his particular branch of his firm. While working at the main office, or while traveling for work, the Veteran still only had mild work dysfunction, however, because of his strong intelligence and ability to compensate. The examiner provided a current GAF score of 67. The evidence does not suggest that the Veteran's chronic adjustment disorder warrants a rating in excess of 10 percent prior to January 17, 2013, or greater than 30 percent after that date. As noted above, prior to January 17, 2013, the Veteran's chronic adjustment disorder is rated as 10 percent disabling, which encompasses symptoms such as 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. At the time of the 2009 examination, the Veteran's mental status was "entirely unremarkable;" there were no significant changes demonstrated from that point forward. The Veteran did describe anxiety and depression symptoms throughout his treatment, both of which the Board acknowledges are included in the list of the criteria for a 30 percent rating. Those symptoms continued to appear present throughout the appeal period, as have symptoms of heightened arousal and sleeping difficulties, as well as some level of alcohol abuse. At one point, in July 2009, his speech was judged to be rapid and pressured, and he had some impaired judgment. There is no evidence of any memory loss. Despite those symptoms, the Veteran still has not presented an overall disability picture that meets the criteria for a 30 percent rating. A higher rating under the General Rating Formula for Mental Disorders necessitates not only the presence of certain symptoms, but also that those symptoms cause a certain level of impairment sufficient to meet the requirements for the next higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013) (holding that, in the context of a 70 percent rating, 38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). Despite the Veteran's symptoms that align to some degree with the criteria for a 30 percent rating, the overall disability picture does not show the type of impairment necessary for a 30 percent rating - that being, a showing of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 38 C.F.R. § 4.130, General Rating Formula. At no point prior to January 17, 2013 is there evidence of a decreased work efficiency or intermittent period of inability to perform occupational tasks. Significantly, at the time of the August 2009 examination, the Veteran reported no problems with his part time employment, was attending school, and was planning on beginning a full course load at a community college. As of August 2011, the Veteran had obtained an associate's degree and was working full time. In January 2013, the Veteran described no occupational impairment when working alone, and indicated that he was able to work around other people due to his intelligence and ability to compensate. The Board acknowledges that the Veteran has occasional panic attacks. Notably, however, the evidence does not suggest that the Veteran has had frequent panic attacks; he described one panic attack at the time of his August 2009 examination, and in January 2013, in discussing his history, stated that he had only one or two panic attacks per year. He also never indicated that any panic attacks interfered with his occupational function. Further, the Veteran continued to have positive relationships. Although his relationship with his girlfriend ended, he maintained supportive relationships with his parents and with some friends. The Veteran's GAF scores, all in the mid-60s, also support the 10 percent rating. As noted above, a GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, while having some meaningful interpersonal relationships. A lower GAF, ranging from 51 to 60, could suggest a more severe disability; GAF scores in that range address 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). As such, despite demonstrating some symptoms relevant to a 30 percent rating, without the showing of actual overall impairment to meet that level of disability, a higher rating for chronic adjustment disorder is not warranted prior to January 17, 2013. Id.; Vazquez-Claudio, 713 F.3d at 118. Likewise, the evidence does not warrant a rating in excess of 30 percent for the period beginning January 17, 2013. The evidence from the January 2013 examination is consistent with the prior evidence concerning the Veteran's disability, and in fact shows some level of improvement. For a 50 percent rating, the Veteran would have to show occupational and social impairment with reduced reliability and productivity, with symptoms such 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. Other than a depressed mood, the Veteran did not demonstrate any of the symptoms of the type that the 50 percent rating criteria considers. Concerning the overall disability picture, the evidence since January 2013 fails to show reduced reliability or productivity. As such, there is no evidence to warrant a rating in excess of 30 percent for the period beginning January 17, 2013. Id. The Board has also considered whether the Veteran's chronic adjustment disorder presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with his employment. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran is employed, and has not suggested during the appeal that his disability impacts his employability. Therefore, the issue of entitlement to a TDIU has not been raised under Roberson and Rice. ORDER Entitlement to an initial evaluation in excess of 10 percent for chronic adjustment disorder with alcohol abuse in remission, prior to January 17, 2013, is denied. Entitlement to an initial evaluation in excess of 30 percent for chronic adjustment disorder with alcohol abuse in remission, beginning January 17, 2013, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs