Citation Nr: 1325100 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-22 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for anxiety disorder, rated as 50 percent disabling prior to May 12, 2010, and 70 percent disabling thereafter. 2. Entitlement to total disability based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1943 to March 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which in pertinent part continued the 50 percent evaluation for anxiety disorder, and denied a TDIU. The Veteran perfected an appeal as to those issues. During the pendency of the appeal in a July 2011 rating decision, the RO increased the disability evaluation for anxiety disorder to 70 percent effective May 12, 2010. Since the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). When this case was previously before the Board in January 2013, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to May 12, 2010, anxiety disorder was manifest by some difficulty in adapting to stressful circumstances and panic attacks once per week, but the record shows no suicidal ideation; no obsessional rituals; speech unremarkable; no impaired impulse control; no spatial disorientation; and no neglect of personal appearance and hygiene. 2. From May 12, 2010, anxiety disorder is manifest by some impairment in communication, inability to perform some activities of daily living, and memory loss, but the record shows no delusions or hallucinations; appropriate behavior; no danger of hurting himself or others; and no disorientation to time and place. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for anxiety disorder prior to May 11, 2010, and in excess of 70 percent thereafter, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional notice regarding VA's duty to notify and assist the Veteran is not required and any defect in the notice is not deemed prejudicial to the Veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Here, the Veteran was provided full notice under the VCAA in October 2007; thus, VA's duty to notify in this case has been satisfied. The record also reflects that service treatment records and post-service VA medical and private records have been obtained, and the Veteran has been afforded appropriate VA and VA-contracted examinations. However, the Board notes that the Veteran failed to report for his most recently scheduled examination in April 2013, despite being advised of the examination. He has not explained why he failed to appear for the examination or requested that the examination be rescheduled. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). The Veteran has not identified any other evidence that could be obtained to substantiate the claim. The Board also is unaware of any such outstanding evidence. Therefore, the Board also is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making this assessment, the Board must "stage" the rating if there have been occasions since when the disability has been more severe than at others, which will compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (concerning an initial-rating claim, from which this practice arose). The regulations establish a general rating formula for mental disabilities. 38 C.F.R. § 4.130 (2012). Ratings are assigned according to the manifestation of particular symptoms. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Anxiety disorder is evaluated under Diagnostic Code 9400. The criteria for a 50 percent rating are as follows: 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. The criteria for a 70 percent rating are as follows: 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 work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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, Diagnostic Code 9400 (2012). The Board has considered the Global Assessment of Functioning (GAF) scores assigned for the Veteran. GAF scores are based on a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32. A GAF score of 41-50 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). However, the GAF scores do not correlate to any specific rating. The Board has found the examination findings and the actual assessments of the Veteran's occupational and social functioning to be more probative than the GAF scores. Additionally, 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(b) (West 2002); 38 C.F.R. § 4.3 (2012). Analysis The Veteran's anxiety disorder is currently assigned a disability rating of 50 percent under Diagnostic Code 9400 for the period prior to May 12, 2010, and a rating of 70 percent disabling thereafter. The Veteran seeks higher ratings. Dr. M.T., M.D., submitted multiple statements to include in September 2007, April 2008, January 2010, October 2010, August 2011, and April 2012 in which he generally asserted that he believed the Veteran's anxiety was severe and uncontrollable and caused symptoms to include memory loss, palpitations, shortness of breath, increasing panic attacks, nightmares and flashbacks. Additional private treatment records show treatment for anxiety and visits to the emergency room for complaints of increased anxiety despite taking medication to include Valium. The Veteran was afforded a VA-contracted examination in November 2007 in which he reported symptoms to include anxiety, worry, intrusive thoughts, impairment with daily functioning, sleep disturbances, fear of crowds, isolation, feelings of mistrust and abandonment, and panic attacks occurring once per week. Mental status examination showed normal orientation, appearance, hygiene, behavior; affect and mood were abnormal with flattened affect, depressed mood, intrusive thoughts, nightmares, insomnia, anxiety, and worry; communication was grossly impaired, but speech was within normal limits; concentration and short-term memory was poor (forgetting names, directions, and recent events); there were no delusions, hallucinations, or obsessional rituals; thought process, judgment, and abstract thinking were normal; and suicidal and homicidal ideations were absent. The examiner assigned a GAF score of 50 and stated that the Veteran did not have difficulty performing activities of daily living but was unable to establish and maintain effective work/school and social relationships because of symptoms. The examiner also stated that the Veteran's psychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the Veteran was functioning satisfactorily with routine behavior self-care and normal conversation. In a rating decision in February 2008, the RO continued the 50 percent evaluation for the service-connected anxiety disorder. The Veteran submitted a statement in July 2008 that his short-term memory had worsened since 2007, and he was more depressed because he had to hire someone to do everything for him. The Veteran was afforded a VA examination in May 2010 in which he reported symptoms of severe and constant depression, anxiety, flashbacks, nightmares, panic attacks and hopelessness, sleep disturbances, and memory loss. He did not report any history of violence or suicide attempts. He described having a good relationship with his children. The Veteran also reported symptoms of recurrent recollections and intrusive thoughts and dreams, avoidance, irritability or outbursts of anger, exaggerated startle response, difficulty concentrating, and hypervigilance. Mental status examination showed orientation, appearance, hygiene, and behavior were appropriate; affect and mood showed anxiety, helplessness, hopelessness, and depressed mood; communication was grossly impaired, but speech was within normal limits; impaired attention and/or focus; panic attacks; no delusions or hallucinations; obsessive-compulsive behavior was absent; thought processes were appropriate; he was able to understand directions; judgment was impaired with mild impairment; abstract thinking was abnormal; memory was impaired with forgetting names, directions, and recent events; and suicidal and homicidal ideation was absent. During the pendency of the appeal in a July 2011 rating decision, the RO increased the disability evaluation for anxiety disorder to 70 percent, effective May 12, 2010. In response to the Board's January 2013 decision and remand, the Veteran was scheduled for a VA examination in April 2013; however, despite receiving notice of the examination, the Veteran failed to report without explanation. After carefully reviewing the evidence of record, the Board concludes that prior to May 11, 2010, the occupational and social impairment from the Veteran's anxiety disorder more nearly approximated the impairment required for a 50 percent rating than that required for a 70 percent rating. The Board notes that the Court has held that the symptoms enumerated under the schedule for rating 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). As noted above, a schedular rating of 70 percent rating is awarded for deficiencies in most areas, but the evidence of record does not show that prior to May 11, 2010, the Veteran's anxiety impairment more nearly approximated such impairment. To this point, specific symptoms associated with the 70 percent rating include 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. Review of the evidence of record prior to May 11, 2010, shows that the Veteran's anxiety disorder caused some difficulty in adapting to stressful circumstances and panic attacks once per week, but the other symptoms were absent. The record shows no suicidal ideation; no obsessional rituals; speech unremarkable; no impaired impulse control; no spatial disorientation; and no neglect of personal appearance and hygiene. For the reasons above the Board finds the criteria for a rating in excess of 50 percent prior to May 11, 2010, are not met. As noted above, the Veteran is in receipt of a 70 percent disability rating effective May 11, 2010. The Board finds that the Veteran's anxiety disorder has not met the criteria for the next higher, 100 percent, rating. To this point, a 100 percent disability evaluation is granted where anxiety disorder is productive of 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 himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; or memory loss for the names of close relatives, own occupation, or own name. Review of the evidence of record shows that the Veteran's anxiety disorder caused some impairment in communication, inability to perform some activities of daily living, and memory loss, but the other symptoms were absent. The record shows no delusions or hallucinations; appropriate behavior; no danger of hurting himself or others; and no disorientation to time and place. For the reasons above the Board finds the criteria for a rating in excess of 70 percent are not met. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must also consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in arriving at the determination above the Board has considered the lay evidence offered by the Veteran and his representative in the form of correspondence to VA in which it has generally been asserted that the Veteran is entitled to higher disability ratings for his anxiety disorder due to his reported symptoms. Although the Veteran is competent to report his own overall symptomology, and in affording those statements full credibility, they do not show that his impairment more closely approximates the schedular criteria for the next higher evaluation. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b) (1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. In reaching its decision, the Board has considered the benefit-of-the-doubt rule; but has determined that it does not apply in this case because the preponderance of the evidence is against claim. ORDER Entitlement to an increased evaluation for anxiety disorder, rated as 50 percent disabling prior to May 12, 2010, and 70 percent disabling thereafter is denied. REMAND In its January 2013 decision and remand, the Board determined that the claim for TDIU was to be adjudicated. Unfortunately, the TDIU claim still has not been adjudicated, and as the Board still has jurisdiction over this claim, consideration of the claim for TDIU must be made by the RO in the first instance. A remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO must adjudicate the issue of TDIU. If the benefit sought on appeal is denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case that addresses all pertinent evidence, laws and regulations relevant to his claim. The Veteran and his representative should be provided a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters 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. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs