Citation Nr: 1332138 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-10 386 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an initial rating greater than 30 percent for the service-connected anxiety disorder with major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from December 1967 to October 1977 and April 1991 to August 1994. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the RO. The Board notes that per Rice v. Shinseki, 22 Vet. App. 447 (2009) a claim for an increased rating contains an implicit claim for a total compensation rating based on individual unemployability (TDIU) when the Veteran presents evidence of unemployability. However as the Veteran has not presented evidence of unemployability, the issue of TDIU has not been raised. The Veteran's virtual VA file has been reviewed. FINDING OF FACT The symptoms and overall level of impairment of the service-connected anxiety disorder with major depression is show to more nearly approximate that of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for the assignment of an initial rating of 50 percent, but no more, for the service-connected anxiety disorder with major depression have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.130 including Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The issue of an initial higher rating for anxiety disorder and depression involves a "downstream" issue, as the initial claim for service connection was granted in the September 2010 rating decision appealed, and the current appeal arises from his disagreement with the evaluation originally assigned. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated; it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Thus, as the Veteran's claim for an increased initial disability rating was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; 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). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, nor does record contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA examination was conducted in August 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination was adequate as the examiner evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Initial Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's anxiety disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9413. Psychiatric disabilities are evaluated under a general rating formula for mental disorders. All psychiatric disabilities are evaluated together regardless of the diagnoses. Under the general rating formula, a 30 percent rating is warranted for 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 conversation normal), 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 disability rating of 50 percent 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 effective work and social relationships. A disability rating of 70 percent is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 inability to establish and maintain effective relationships. A total schedular rating of 100 percent is assigned when the condition results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 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 an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995). A GAF score between 31 and 40 is indicative of some impairment in reality resting or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF score between 41 and 50 is indicative of 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. A GAF score between 51 and 60 is indicative of 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 coworkers). Id. A GAF score between 61 and 70 is indicative of mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, but generally functioning pretty well, has some meaningful interpersonal relationships. Id. In August 2010 a VA examination was conducted, and the Veteran reported being treated for significant anxiety and panic attacks in service. The examiner found the Veteran to be alert, oriented and cooperative. His thought processes were goal-directed, and thought content was without hallucinations or suicidal or homicidal ideations. The Veteran focused on an infidelity issue with his ex-wife that happened over 40 years earlier. He presented with an alright mood, and his affect was anxious. The Veteran reported no memory loss. The Veteran reported a history of occasional angry outbursts, panic attacks on a regular basis and near daily depression. He reported sleeping up to 14 hours a day when depressed. The Veteran reported no suicide attempts, but did have suicidal ideation without plan or intent. He reported having difficulty with impulse control and angry outbursts. The Veteran had married and divorced twice. He had three adult children and was estranged from one but close to the others. He reported having friends, but social activities revolved around church functions or events for which he was hired or volunteered to play the piano. The examiner confirmed the diagnosis of anxiety and depression and found that the Veteran's social functioning was impact by his symptoms including anxiety, depression, panic attacks, sleep disturbance, difficulty sustaining intimate relationships, anxious mood, nervousness, excessive worry and thoughts, tension, irritable mood, problems concentrating, racing thoughts, feelings of hopelessness and worthlessness, guilty feelings, fatigue and loss of energy, decreased interest in activities, difficulty making decisions, and appetite changes with resultant weight fluctuations. The examiner found the Veteran's occupational functioning to be impacted by symptoms of fighting, insubordination, tardiness, daytime fatigue, and problems concentrating. The examiner assigned a GAF (Global Assessment of Functioning) score of 55. The Veteran had been receiving ongoing psychiatric and psychological treatment at the VA for his anxiety disorder. In March 2010, he was found to have an anxiety disorder with no suicidal or homicidal ideation. In May 2010, he was noted to have a major depressive disorder, but his affect was appropriate. He appeared alert, oriented and focused at the session. In August 2010, the Veteran appeared with good grooming and hygiene, good eye contact, a "better" mood, and an affect in the fair to good range. He was still joking and laughing at times. He reported a history of passive suicidal ideation, but denied any currently. He had no homicidal ideation, hallucinations or delusions, but limited insight and questionable judgment. GAF scores of 60 were noted. In October 2010, the Veteran appeared to be benefitting from therapy. He appeared with good grooming and hygiene, speech of regular rate and rhythm, good eye contact and "ok" mood. The Veteran's affect was fair to good range, and his thought processes were essentially linear. He reported having a history of passive suicidal ideation, but denied any currently. In February 2011, the Veteran was seen for a recurrent major depressive disorder and anxiety. He reported having intermittent depressive symptoms that were likely related to anxiety. The treatment provider noted that the Veteran deferred the need to resume therapy, but opined that further therapy could be helpful. Neuropsychiatric testing was scheduled for the Veteran's subjective memory impairment verses inattention. In March 2011, neuropsychiatric testing was conducted and found the Veteran's total score in the average range. An analysis of the subtest scores found all of them to be in the average range with the subsets being attention, immediate memory, delayed memory, visual spatial, and language. In June 2011, the Veteran was noted to have recurrent major depressive disorder and anxiety with no change in meds at last visit. He reported feeling that the medications were making him tired and not wanting to continue the medication. The psychiatrist found that the Veteran had tried for several visits to be taken off of the meds, but believed that this was because he had no insight into the severity of his underlying disease. The psychiatrist noted that he had advised him at length as to his concern that the Veteran's anxiety and depression would get worse. The Veteran was referred for therapy. The psychiatrist also noted that, although neuropsychiatric testing revealed average results for the areas tested, he still suspected that the Veteran's symptoms of memory impairment were related to the underlying anxiety. In October 2011, the Veteran presented with a depressed mood for psychology treatment and was noted to have a chronic adjustment disorder with mixed depression and anxiety. He acknowledged having vague suicidal ideation. He had no clear plan; however, he reported often walking across a bridge as part of his routine exercise and imagining himself jumping over the side. The psychologist worked with him to develop a plan for shifting his thoughts when walking across that bridge or having any similar suicidal ideation. He was diagnosed with chronic adjustment disorder with mixed depression and anxiety with a GAF score of 65. In his April 2012 appeal statement, the Veteran reported having a lack of motivation, trouble concentrating and forgetfulness. He also reported having anger outbursts and anxiety with panic attacks three times per week, on average. The Veteran also reported continuous VA treatment for his condition. The evidence shows that the Veteran's symptomatology and overall impairment more closely resembles the criteria for an initial 50 percent rating for the entire period of the appeal. The Veteran has consistently had symptoms of questionable judgment, memory impairment, disturbances of mood, and panic attacks that are listed (or equivalent to those listed) in the criteria for a 50 percent rating. For example, in August 2010, the Veteran was found to have limited insight and questionable judgment and, in June 2011, the treatment provider found that the Veteran's desire to come off medication was because he had a lack of insight into the severity of his condition. To the extent that testing found average rates for memory, the June 2011 treatment provider found that the Veteran had memory impairment due to his anxiety. While there is no evidence of circumstantial, circumlocutory, or stereotyped speech, the Veteran reported having panic attacks multiple times per week, both at the August 2010 VA examination and in his statements submitted directly to the Board. The 50 percent rating describes panic attacks more than once per week. The Veteran's level of overall impairment is shown to be more consistent with occupational and social impairment manifested by reduced reliability and productivity. For example, at the August 2010 VA examination the Veteran reported a history of occasional angry outbursts, panic attacks on a regular basis and near daily depression. A rating higher than 50 percent is not warranted at any time throughout the appeal period because the evidence reflects that the Veteran did not have the symptomatology warranting a rating of 70 percent. On two occasions, the Veteran reported having suicidal ideation, but without plan or intent. At the August 2010 VA examination, the Veteran reported suicidal ideation but the examiner observed that he had no suicidal ideations. At a separate August 2010 appointment, he reported only a history of suicidal ideation. At the June 2011 appointment, he noted having a vague suicidal ideation, but thinking about jumping off a bridge when he would walk over it. The Veteran had not reported any active suicidal ideation during other treatment appointments. The Veteran's two reports of vague suicidal ideation are not inconsistent with the recorded GAF scores of 55, 60, and 65 that indicate only mild to moderate symptoms. Moreover, on examination in August 2010, the Veteran's primary symptoms included panic attacks, sleep disturbance, problems concentrating, racing thoughts, and a decreased interest in activities. However, the Veteran was also noted to be alert, oriented and cooperative. His thought processes were goal-directed and thought content that did not include hallucinations or suicidal or homicidal ideations. The examiner found the Veteran's occupational functioning to be impacted by symptoms of fighting, insubordination, tardiness, daytime fatigue and problems concentrating. The lay and medical evidence show reduced reliability and productivity rather than deficiencies in most areas or an inability to establish and maintain effective relationships. As such, the Veteran's symptoms and overall level of impairment do not meet the criteria for a rating higher than 50 percent during the period of the appeal. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The manifestations of the service-connected disability, including occupational impairment and the effects on daily activities, are contemplated by the schedular criteria. No examiner has reported an exceptional disability picture with symptoms not reasonably addressed by the rating schedule. 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 extraschedular consideration is not warranted. ORDER An increased, initial rating of 50 percent, but no higher, for the service-connected anxiety disorder with major depression is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs