Citation Nr: 1326943 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-46 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder with depressive disorder. 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Board hearing at the RO in March 2011 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issues were remanded for further development by the Board in May 2011 to afford the Veteran with a VA psychiatric examination regarding her depression and generalized anxiety claims and to determine her ability to maintain gainful employment. The Veteran was afforded a VA examination in August 2012 with a gynecological addendum in September 2012. The examiners provided the requested opinions. The issues were remanded again in January 2013 to provide a disability rating for the Veteran's service-connected depressive disorder. In January 2013, the RO issued a rating decision associating the Veteran's depressive disorder with her already service-connected general anxiety disorder and affirming a 30 percent evaluation for the combined symptoms. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's generalized anxiety disorder with depressive disorder is productive of no more than 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; sleep impairment; and mild memory loss. It is not manifested by occupational and social impairment, with reduced reliability and productivity. 2. Prior to promulgation of a decision in the appeal, the Veteran withdrew her appeal with respect to the issue of TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for generalized anxiety disorder with depressive disorder have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9434 (2012). 2. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to TDIU have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in November 2005 the Veteran was notified of the evidence not of record that was necessary to substantiate her claim. She was told what information that she needed to provide, and what information and evidence that VA would attempt to obtain. She was provided with the requisite notice with respect to the Dingess requirements in a March 2006 letter. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For an increased-compensation claim, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters, a May 2009 letter, and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on her own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on her employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that she could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered her treatment history and the severity of her current symptoms. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Increased Disability Rating - Generalized Anxiety Disorder with Depressive Disorder The Veteran asserts that her psychiatric disability is more severely disabling than currently evaluated and most closely approximates the criteria for a 50 percent rating. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM IV), a global assessment of function (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM IV, American Psychiatric Association (1994), pp.46-47; 38 C.F.R. §§ 4.125(a), 4.130. A GAF score of 31-40 indicates 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 younger children, is defiant at home, and is failing at school. A GAF score of 41-50 indicates 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). A GAF score of 51-60 represents 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). A GAF score of 61-70 indicates 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. The Veteran's service-connected anxiety disorder with depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides, in part: A 30 percent disability rating is warranted when the Veteran experiences 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). A 50 percent disability rating is warranted when the Veteran experiences 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 disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Here, the Veteran's general anxiety disorder has been combined with her depressive disorder as the symptoms are not distinguishable. The Board will consider all of the Veteran's psychiatric symptoms together. The Veteran's psychiatric disabilities are rated at 30 percent disabling. To receive a higher disability rating, the evidence must indicate that her psychiatric disability more closely approximates the criteria for a 50 percent rating noted above. The Board finds that the preponderance of the evidence shows Veteran's psychiatric disabilities did not manifest to the level in excess of 30 percent disability rating. The Veteran did not show 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 Veteran was afforded a VA examination in March 2006. The Veteran reported neither inpatient nor outpatient mental health services since July 2003. The Veteran also reported stopping her psychiatric medications for the prior three years due to excessive weight gain. The Veteran denied any interpersonal conflicts with coworkers. The Veteran had recently ended a year long relationship with a man with whom she had numerous verbal conflicts. She also has a 13-year-old son whom she has a variety of conflicts with. She has several individuals who consider themselves her friends. She noted a decrease in her socialization and in her interests. The Veteran's mood was moderately anxious and her affect was congruent to the topic of discussion. Her speech presented normally with regards to production, volume, content, and clarity. Thought content was logical and thought processes were clear and coherent. The Veteran denied any long-term memory difficulties, but did describe mild short-term memory problems including misplacing everyday objects and forgetting appointments. The Veteran also endorsed concentration and attention difficulties, which were evidenced during the evaluation. The examiner noted no delusions, hallucinations, or suicidal or homicidal ideations. The Veteran's insight and judgment appeared relatively intact. The Veteran sleeps anywhere between four and eight hours per night. Although the Veteran reported mild physical symptoms associated with anxiety, she did not endorse sufficient symptoms to meet the minimum criteria and thresholds for panic attacks. The Veteran noted symptoms of severe anxiety. The examiner provided a GAF score of 64. The examiner found that the Veteran's social and occupational functioning are mildly impaired by her anxiety symptoms. The Veteran was afforded another VA examination in August 2012. At that time, the examiner assigned a GAF score of 64. The examiner found that the Veteran showed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported being close with her family, particularly her parents and sibling, although she has had some emotional difficulty with pregnancies in the family since she can no longer become pregnant herself. The Veteran watches TV and movies, has some friends who she likes to visit, she also attends church and enjoys cooking, occasionally catering events. The examiner noted mild impairment in social functioning during the interview secondary to symptoms associated with anxiety and depression. The Veteran has maintained the same job for five years as a manager and recently had a satisfactory performance evaluation in 2011. The examiner found mild impairment in occupational functioning during the interview. The Veteran has a counselor she sees on an as needed basis. The Veteran's last three GAF scores were 60 in December 2009, 65 in June 2010, and 68 in December 2010. The examiner noted no therapeutic contacts with the clinic since June 2011. The examiner noted depressed mood and anxiety, nut found no speech problems, memory problems, difficulty in understanding complex commands, or panic attacks. The examiner noted some occasional reduction in work efficacy due to her psychiatric diagnosis and symptoms, but noted that her overall level of functioning does not appear to have changed significantly over the past several years according to her self-report, GAF scores, and associated mental health progress notes. The examiner found a mild impairment in social and occupational functioning. The file includes treatment records from October 2009 to June 2011. The Veteran showed logical thought processes, good insight and judgment, and a congruent affect. The Veteran reported stress over her work situation, her son, and her social engagements. The examiners often reported tangential or circumlocutory speech. In May 2011, the Veteran was assigned a GAF of 75. The examiner noted that the Veteran's speech was normal in rate, rhythm, quantity, tone, and volume, articulation, and prosody. She was oriented in all spheres with her memory intact for immediate, recent, and remote events. Her thought processes were logical, goal-directed and coherent without tangentiality or curcumstantiality. The Veteran had fair insight into her condition. In her lay statements, the Veteran has reported being hard on women at work who have children. She reported difficulty being around children and accepting the pregnancies of others. She also reported anxiety symptoms such as shortness of breath and numbness or tingling in the hands. The Board finds that the preponderance of the evidence shows that the Veteran's general anxiety disorder with depressive disorder most closely approximates the criteria for a 30 percent disability rating. The Veteran's symptoms to include 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). The Veteran's main symptoms were depression and anxiety, which are addressed in the 30 percent criteria. She also reported some mild memory loss and occasional sleep difficulties, which are included in the 30 percent rating criteria. Further, the VA examiners and treating counselors noted only mild occupational and social impairment. The evidence does not show that the Veteran experiences occupational and social impairment, with reduced reliability and productivity. Although the Veteran does have anxiety and depression, her occupation was not significantly affected. She has been sought out to be the manager of her Red Lobster and currently runs two Red Lobsters. She has maintained the same job with satisfactory employment ratings for over five years. She has a relationship with her family and has friends. Her affect was always congruent and never flattened. She did not meet the criteria for panic attacks. She showed no long-term memory loss. Her judgment, thinking, and insight were consistently considered intact. The Board acknowledges the Veteran's tangential or circumlocutory speech; however this symptom does not cause or manifest to a degree equivalent to occupational and social impairment, with reduced reliability and productivity. The Board has considered that the symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board notes that the Veteran experiences other symptoms that are not listed in the criteria, but may reflect the severity of her general anxiety disorder and depressive disorder. These include, but are not limited to occasional shortness of breath and numbness or tingling in the hands associated with her anxiety. Specifically, the Board has also considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria 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). See Mauerhan, 16 Vet. App. 436. The Veteran's GAF scores are also consistent with a 30 percent rating. The Veteran was assigned multiple GAF scores during the appeal period ranging from 60 to 75. A GAF score of 51-60 represents 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). A GAF score of 61-70 indicates 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. The Veteran's scores were 61 or greater in all but one instance. These scores support the examiners' findings of only mild occupational and social impairment. Therefore Board finds that the Veteran's GAF scores are consistent with her current 30 percent disability rating. Based on the evidence of record, the Board finds that the manifestations of the Veteran's general anxiety disorder with depressive disorder do not more nearly approximate the criteria for a 50 percent disability rating. As such, the Board finds that the preponderance of the evidence is against the claim. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's generalized anxiety disorder with depressive disorder is manifested by depressed mood, anxiety, mild sleep impairment, mild short term memory loss, circumlocutory or tangential speech, and mild social and occupational impairment. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, her description of psychiatric symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Veteran has specifically withdrawn any claim relating to TDIU and, as there is no evidence of unemployability, the question of entitlement to TDIU is not raised. Withdrawal of TDIU Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In October 2009, the Veteran perfected an appeal as to the issue of entitlement to TDIU. In a July 2013 written statement, the Veteran's representative indicated that the Veteran wished to withdraw her claim for TDIU pending before the Department of Veterans Affairs and the Board of Veterans' Appeals as the Veteran is working full time. As such, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal regarding TDIU, and the issue is dismissed. ORDER A rating in excess of 30 percent for generalized anxiety disorder with depressive disorder is denied. The appeal for entitlement to TDIU is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs