Citation Nr: 1330026 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-08-827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 50 percent for anxiety disorder. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1967 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). FINDING OF FACT Manifestations of the Veteran's service-connected anxiety disorder includes a constricted affect, agitation, a dysphoric mood, persistent auditory hallucinations, a history of violence, mild hypervigilence, social withdrawal, avoidance, anxiety, irritability, mild difficulty sleeping, and fair judgment and insight that results in moderate social impairment. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for an anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Veteran's claim concerning the proper disability rating to be assigned to his service-connected anxiety disorder arises from his disagreement with the initial disability evaluation assigned to this condition following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice as to this claim is needed. As to VA's duty to assist, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained and associated with the claims file. The RO attempted to procure the Veteran's Social Security Administration (SSA) records, as he indicated that he was receiving SSA disability benefits. However, the SSA indicated that records did not exist because either the Veteran had never filed for benefits or any claim for benefits did not have associated medical records. The Veteran was also provided with a VA examination which was thorough and adequate. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). In December 2009, service connection for an anxiety disorder was granted, and a 50 percent disability rating was assigned under 38 C.F.R. § 4.130, Diagnostic Code 9413, effective November 3, 2008. A 50 percent rating is assigned when an anxiety disorder causes 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, such as retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 100 percent evaluation is warranted an anxiety disorder causes 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; and memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the evidence, the Board has considered the Global Assessment of Functioning (GAF) score that the VA examiner has assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). A GAF score of 61-70 indicates some mild symptoms, such as depressed mood or some difficulty in social or occupational functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. See DSM-IV at 46-47. A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational or school functioning. Id. A GAF score of 41-50 is assigned where there are, "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)." Id. GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication, for example, 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, for example, depressed man avoids friends, neglects family and is unable to work. Id. In the Veteran's January 2009 and May 2009 VA treatment reports, his mental status was documented on both occasions as alert, appropriate, and oriented to person time and place. In the January 2009 report, the Veteran reported that his social circle consisted of friends at a local bar, and that he also occasionally watched while the owner ran errands. In the May 2009 report, it was also noted that the Veteran scored a zero on his depression screen, and that he reported drinking and smoking every night while at the bar with friends. The Veteran underwent a VA PTSD examination in April 2009. The VA examiner indicated that the Veteran's claims file, VA medical records, and DD-214 had been reviewed. During the exam, the Veteran reported that he had never been hospitalized or received outpatient treatment for a mental health disorder. However, the Veteran reported that he had symptoms during the previous year, such as an established habit of daily alcohol abuse. The Veteran also noted a history of violence, specifically bar fights, but he stated that his last altercation was approximately five years prior. The Veteran reported that he had been married twice, both after service, and that he believed his alcohol abuse contributed to the dissolution of his marriages. The examiner noted that the Veteran has two children and three grandchildren with whom he maintains a relationship. In summarizing the Veteran's psychosocial status, the examiner also noted that the Veteran was retired, liked to ride his motorcycle, and maintained a few friendships. On mental status examination, it was noted that the Veteran was casually dressed, exhibited appropriate behavior, and was alert, cooperative, and oriented to person, time, and place. His speech, psychomotor activity, thought process, and thought content were reported as unremarkable. However, the Veteran also exhibited constricted affect, agitation, and a dysphoric mood. In addition, while the Veteran did not report delusions, he did report persistent auditory hallucinations. The examiner noted that the Veteran did not report any obsessive or ritualistic behavior, panic attacks, homicidal or suicidal thoughts, problems with activities of daily living, or problems maintaining minimum personal hygiene. The examiner also noted that the Veteran was competent to manage his VA benefits, and that he was retired due to injuries to his shoulder, elbow, and wrist. The Veteran also reported mild hypervigilance and moderate chronic estrangement. Psychological testing confirmed that the Veteran was experiencing social withdrawal, avoidance, anxiety, irritability, and mild difficulty sleeping. The examiner concluded that the Veteran had anxiety disorder and alcohol dependence. The examiner also concluded that the Veteran's anxiety disorder was causing moderate impairment to his social functioning; occupational impairment was not assessed as the Veteran was retired due to physical disabilities, and a GAF score of 62 was assigned. The Veteran's recorded GAF score was 62, which contemplates mild symptoms such as depressed mood or some difficulty in social or occupational functioning, but generally functioning pretty well, with "some" meaningful interpersonal relationships. DSM-IV at 46-47. Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria. See Carpenter, 8 Vet. App. at 242. Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered, but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id. see also 38 C.F.R. § 4.126 (2013); VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). The medical evidence of record reports that the Veteran was appropriately dressed with good grooming and hygiene, alert, fully oriented, and cooperative. He stated that he maintained relationships with his children, grandchildren, and a few friends. The Veteran exhibited nervous or a depressed mood; a constricted affect; clear and normal speech; logical and relevant thought process, with no cognitive or perceptual impairment; normal thought content without evidence of homicidal or suicidal ideation or delusion; and fair judgment and insight. The Veteran noted a period of violence; however, he declared that the last incident was a bar fight in approximately 2004. Moreover, the Veteran's social and occupational impairment level is such that he was able to occasionally manage the bar that he frequents, while the owner is running errands. Finally, the Veteran was found competent to manage his own financial affairs. Although the record reflects that the Veteran had persistent auditory hallucinations, the VA examiner did not ascribe any additional related social or occupational impairment to the reported persistent auditory hallucinations. The evidence does not show obsessional or ritualistic behaviors which interfere with routine activities; panic attacks; wholly impaired impulse control; homicidal or suicidal thoughts, neglect of personal appearance and hygiene, or problems with activities of daily living. A VA examiner found that the Veteran had only moderate, but not total social impairment or the inability to establish and maintain effective relationships. 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code 9413. Moreover, the record does not show that the Veteran exhibited gross impairment in thought processes or communication; 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; and memory loss for names of close relatives, or own name. In sum, the Board finds that the evidence of record does not support an evaluation in excess of 50 percent at any time during the appeal period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's service-connected anxiety disability picture is not so unusual or exceptional in nature as to render his current 50 percent rating inadequate. The Veteran's service-connected anxiety disorder is currently rated under Diagnostic Code 9413, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. 38 C.F.R. § 4.130. Manifestations of the Veteran's service-connected anxiety disorder includes a constricted affect, agitation, a dysphoric mood, persistent auditory hallucinations, a history of violence, mild hypervigilence, social withdrawal, avoidance, anxiety, irritability, mild difficulty sleeping, and fair judgment and insight that results in moderate social impairment. When comparing the Veteran's anxiety disorder with the symptoms contemplated by the Rating Schedule, the Board finds that the symptoms due to the Veteran's service-connected anxiety disorder are more than adequately contemplated by the current 50 percent disability rating, and therefore, the schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.130, Diagnostic Code 9413; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). After review of the evidence of record, there is no evidence of record that would warrant a rating lesser than or in excess of 50 percent for the Veteran's service-connected anxiety disorder at any time during the period pertinent to this appeal. 38 U.S.C.A. 5110; see also Fenderson, 12 Vet. App. at 126. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected anxiety disorder, the evidence shows no distinct periods of time since service connection became effective, during which the Veteran's anxiety disorder has varied to such an extent that a rating greater or less than 50 percent would be warranted. Cf. 38 C.F.R. § 3.344 (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim for an initial evaluation in excess of 50 percent for anxiety disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability evaluation in excess of 50 percent for an anxiety disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs