Citation Nr: 1333891 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-35 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for arthritis, to include rheumatoid and gouty arthritis. 2. Entitlement to an initial rating in excess of 10 percent for an anxiety disorder prior to May 20, 2009. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active military service from January 1959 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which granted service connection for an anxiety disorder and assigned a 10 percent rating effective December 17, 2002. The RO also denied service connection for arthritis. The claim has since been transferred to the RO in Muskogee, Oklahoma. The claims were previously remanded by the Board in February 2008. The Veteran then testified before the undersigned Acting Veterans Law Judge (AVLJ) at a hearing in May 2009. The claims were remanded again in February 2010 for additional development. In an April 2011 rating decision, the RO assigned a 100 percent rating for anxiety disorder effective from May 20, 2009. This represented a full grant of the benefits sought for that period. Therefore, only the rating in effect for anxiety disorder prior to May 20, 2009 remains on appeal. The claims were again remanded in April 2013 for additional development, and now return to the Board for further review. FINDINGS OF FACT 1. Gout is etiologically related to a service-connected disability. 2. Prior to May 20, 2009, the Veteran's anxiety disorder was manifested by anxiety, difficulty with focus, and GAF scores of 65, suspiciousness, panic attacks, sleep impairment, and memory loss were not demonstrated. CONCLUSIONS OF LAW 1. The criteria for service connection for gout have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2013). 2. Prior to May 20, 2009, the criteria for a rating in excess of 10 percent for an anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Full Grant of Benefits The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. With respect to the Veteran's service connection claim, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. B. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to the initial adjudication of the Veteran's claim, a letter dated in October 2005 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The U.S. Court of Appeals for Veterans Claims (Court) has held that 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 at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Moreover, in accordance with 38 U.S.C.A. §§ 5103(a) and 7105(d), the RO issued a November 2006 statement of the case (SOC) which contained, in part, the pertinent criteria for establishing a higher rating. See 38 U.S.C.A. § 7105(d)(1). VA complied with the procedural statutory requirements of 38 U.S.C.A. §§ 5104(b) and 7105(d), as well as the regulatory requirements in 38 C.F.R. § 3.103(b). See also Dingess. The Veteran was allowed a meaningful opportunity to participate in the adjudication of the claim. Even though the initial VCAA notice did not address a higher rating, subsequent documentation addressed this matter; there is no prejudice to the claimant. See Overton v. Nicholson, 20 Vet. App. 427 (2006). As noted above, the Veteran testified at a Board hearing in May 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) who chairs a hearing must fulfill two duties to comply with the above 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 AVLJ elicited testimony to support the Veteran's contentions and sought to identify any pertinent evidence not currently associated with the claims folder that might substantiate the claim. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim). As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. B. Duty to Assist This additional duty includes assistance in obtaining potentially relevant records, such as service treatment records and post-service VA and private medical evaluation and treatment records, as well as the provision of an examination - including for a medical opinion - when necessary to make a decision on the claim. Here, the Veteran's service treatment records, VA treatment records, private treatment records, Social Security Administration (SSA) records, lay statements, and hearing transcript have been associated with the claims file. The Veteran was also afforded VA examinations. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's anxiety disorder. VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Notably, the claim was most recently remanded to provide the Veteran an SSOC for his increased rating claim. That directive has been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claim. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection A. Applicable Law Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Because the Veteran's claim was pending prior to the change, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. B. Evidence A VA examination was conducted in June 2013. The examiner reviewed the claims file, obtained a history from the Veteran, and conducted a physical examination. Based on this evidence, he diagnosed the Veteran with gout, as well as degenerative arthritis specific to certain locations, such as the cervical spine, lumbar spine, wrists, and feet. He stated that degenerative changes were due to the natural progression of age and not considered to be a rheumatoid or gouty arthritic condition. With respect to gout, in addition to a marked family history of gout, the Veteran had a long history of heavy alcohol use. It was most likely that his alcohol intake had damaged his kidney filtration system, which decreased glomerular filtration rate (GFR) that precipitates worsening of uric acid filtration abilities. This caused the excess uric acid to exit the blood system and settles in the synovial regions of random joints. The Veteran is service-connected for an anxiety disorder. During a January 2006 VA examination, the examiner stated that the Veteran had difficulties with alcohol abuse and that "it would appear that the Veteran's drinking was an attempt to self-medicate an underlying anxiety disorder." C. Analysis In this case, the Veteran's gout has been linked to his alcohol abuse. Where drug and alcohol abuse is at issue, service connection is precluded "in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse." Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, service connection is not precluded if alcohol abuse is secondary to a service-connected disability. Id. Even if a veteran has a service-connected disability, however, service connection would be precluded for the alcohol or drug abuse disability if it is actually due to willful action rather than the result of the service-connected disability. Id. at 1378. The Veteran's alcohol abuse has been attributed to his service-connected disability, and there is no indication that such abuse was actually willful action. In light of the January 2006 and June 2013 opinions, the Board finds that there is sufficient evidence to establish a nexus between the Veteran's currently diagnosed gout and his service-connected anxiety disorder. There is no competent medical opinion to refute this conclusion. Therefore, service connection for gout is granted. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation 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 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran's anxiety disorder is rated under Diagnostic Code 9413, and was assigned a 10 percent rating prior to May 20, 2009. Under that code, a 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9413. A higher 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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 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. §§ 4.125-4.130. The record also contains Global Assessment of Functioning (GAF) scores. As described in the Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STASTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV), GAF scores range from 1 to 100, depending on the level of a person's occupational and social functioning. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 61 to 70 reflect 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, with some meaningful interpersonal relationships. DSM-IV at 46-47. B. Evidence The Veteran underwent a VA examination in January 2006. He reported "being nervous all the time." He discontinued drinking three years ago, but continued to have problems with chronic anxiety, particularly related to his health conditions and lack of income. He treated his condition with medication. On examination, the Veteran's mood was somewhat anxious and his affect was constricted. His thoughts were clear and logical. There was no evidence of delusions, hallucinations, or suicidal ideation. The Veteran reported some difficulties with concentration and focus due to his anxiety. His GAF score was 65. VA treatment records dated in September 2006 showed the Veteran complained that his anxiety medications were not working at their current dosage, and he requested an increase. Additional records dated from March 2007 through December 2007 noted the Veteran had a normal mood and affect. He was alert and fully oriented. In September 2008, he reported that his medications were helping his anxiety and depression. An October 2008 mental status examination reflects that the Veteran had normal speech and thought processes. His mood was euthymic and his affect was normal. His sensorium, insight, and judgment were intact. There was no indication of abnormal motor activity, suicidal or homicidal ideation, delusions or hallucinations. He reported enjoying camping and horse races. Records dated in November 2008 showed that the Veteran reported feeling happier. On examination, his mood was euthymic. The examining physician noted that his affect was brighter, and his speech was stronger and more spontaneous. His GAF score was 65. Additional records dated December 2008 noted no anhedonia or depression. In February 2009, the Veteran reported that his condition had improved with medication. He still has intermittent intrusive thoughts, nightmares, depression, and trust issues. On examination, his mood was "all right" and his affect was congruent. His memory was intact, and there were no thought or speech abnormalities. There were no hallucinations, delusions, or suicidal or homicidal ideation. Concentration was fair. The Veteran's GAF score was 65. In April 2009, the Veteran reported that his Citalopram medication was not helping. His mood was not improved and he was not feeling calm. C. Analysis Based on the evidence, a rating in excess of 10 percent is not warranted during the period on appeal. Records reflect that the Veteran's anxiety disorder was at its most severe in January 2006. Subsequent records from March 2007 reflect no significant objective findings. From September 2008 through February 2009, he reported improved symptoms, and his treating physicians noted objective improvements in mood, affect, and speech patterns. In sum, his condition as manifested in January 2006 does not warrant a higher rating. As noted above, a 30 percent rating under Diagnostic Code 9413 contemplates symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss. Here, the Veteran reported chronic anxiety, and his mood was noted to be somewhat anxious. However, the Veteran's GAF scores of 65 on that date and throughout the appeal period reflect mild symptoms or some difficulty in social, occupational, or school functioning, but overall generally good functioning. While the Board acknowledges the Veteran's reports of anxiety and difficulty with focus, the evidence does not reflect the occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks contemplated by the higher rating. The Veteran is also cognitively intact and there was no indication of any suspiciousness, panic attacks, sleep impairment, memory loss, or other symptoms contemplated by or otherwise consistent with a higher 30 percent rating. While the Veteran's condition appeared to worsen in April 2009, the symptoms he reported at that time were generally consistent with those reported in January 2006, and similarly do not warrant a higher rating. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as anxiety and difficulty with concentration. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran to be credible in his reports of the symptoms he experiences. However, as with the medical evidence of record, the Veteran's account of his symptomatology describes ratings consistent with the assigned ratings. The Board is aware that the symptoms listed under the 30 percent evaluation are essentially examples of the type and degree of symptoms for that evaluation, and that the Veteran need not demonstrate those exact symptoms to warrant a 30 percent evaluation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, the Board finds that the preponderance of the evidence, including the clinical findings, shows that the Veteran's anxiety disorder symptoms more nearly approximate occupational and social impairment due to mild or transient symptoms. D. Extraschedular Rating In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering if the Veteran is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's anxiety disorder with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Veteran's reported symptoms of anxiety and difficulty with concentration and focus are explicitly contemplated by Diagnostic Code 9413, which also addresses additional symptoms not demonstrated through the evidence. There is no indication that the Veteran's anxiety disorder results in any symptoms that fall so far outside the rating schedule as to render it inadequate. ORDER Service connection for gout is granted, subject to the laws and regulations governing the award of monetary benefits. An initial rating in excess of 10 percent for an anxiety disorder is denied. ____________________________________________ J. CONNOLLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs