Citation Nr: 1335389 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-28 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for anxiety disorder, not otherwise specified (NOS). 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1966 to February 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in part, granted service connection for an anxiety disorder, NOS, and assigned an initial disability rating of 10 percent. In a July 2010 Substantive Appeal (VA Form 9), the Veteran requested a Board hearing by live videoconference. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is of record. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT 1. The Veteran's anxiety disorder, NOS, has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as depressed mood, anxiety, chronic sleep impairment, irritability, panic attacks once every two to three months, and mild memory loss of forgetting names. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an initial rating of 30 percent for anxiety disorder, NOS, have been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In the present case, the Board is granting a higher initial disability rating of 30 percent for the service-connected anxiety disorder, NOS, for the entire appeal period. The Veteran and representative have stipulated that a grant of such benefits would fully satisfy the appeal for a higher initial rating; therefore, this decision constitutes a full grant of the benefits sought on appeal on the issue of a higher initial rating for anxiety disorder, NOS, and no further discussion regarding VCAA notice or assistance duties is required with regard to this issue. Initial Rating for Anxiety Disorder, NOS, in excess of 10 Percent Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). 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). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is in receipt of a 10 percent disability rating for anxiety disorder, NOS, under Diagnostic Code (DC) 9413. Anxiety disorder is rated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413. A 10 percent rating is assigned for occupational and social impairment due to mild and transient symptoms that decrease work efficiency and ability to perform occupational tasks only during significant stress or with symptoms controlled by continuous medication. Id. A 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 assigned 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is assigned 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 that is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. Id. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (hereinafter DSM- IV). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. Within the DSM-IV, one factor for consideration is the Global Assessment Functioning (GAF) score, which is a scale ranging from 1 to 100 and reflecting "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). However, while the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. 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. Id. GAF scores ranging from 51 to 60 reflect 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). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which 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., a depressed patient who avoids friends, neglects family, and is unable to do work). Id. After a review of all the evidence, lay and medical, the Board finds that, for the entire appeal period, the Veteran's anxiety disorder, NOS, has been characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks that more nearly approximates the criteria for a 30 percent disability rating, but no higher, under Diagnostic Code 9413. 38 C.F.R. § 4.130. The Veteran's anxiety disorder, NOS, has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, chronic sleep impairment, irritability, panic attacks once every two to three months, and mild memory loss of forgetting names. In December 2009, the Veteran underwent a VA examination. The Veteran reported mild depressed mood with a decrease in energy over the past few months. The Veteran also endorsed insomnia, fatigue, and low energy. The Veteran reported feeling sad on occasion, slight loss of interest, and some issues with self-esteem. The Veteran denied a history of panic attacks. The Veteran was diagnosed with anxiety disorder, NOS, and assigned a GAF score of 68. The VA examiner noted that the Veteran's symptoms included intrusive thoughts, nightmares, avoidance of thoughts and feelings, insomnia, and mild startle response. The VA examiner opined that the Veteran's psychiatric symptoms resulted in a mild decrease in work efficiency due to sleep difficulties and associated decrease in energy. At a March 2010 intake assessment at the Vet Center, a social worker noted that the Veteran's manner and affect were anxious. The Veteran reported insomnia and low energy levels. June 2010 Vet Center progress notes indicate that the Veteran reported feeling irritable and anxious. The Veteran expressed a fear of socializing with others and having difficulty getting up in the morning due to depression. A January 2012 Vet Center progress note indicates that the Veteran continued to experience anxiety. In November 2010, the Veteran was assigned a GAF score of 58, as noted on VA treatment records. November 2010 VA mental health treatment records note that the Veteran had symptoms of anxiety and depression, with some symptoms related to PTSD issues including: irritability; poor concentration; low energy with rapid fatigue; loss of interest and pleasure in things that he used to enjoy; poor sleep due to nightmares; agitation and overall restlessness; social isolation; daily worry; depressed mood; and, feelings of hopelessness. The Veteran endorsed a depressed, irritable, angry, and anxious mood and well as insomnia. A December 2010 VA mental health treatment record notes that the Veteran was agitated with an anxious and dysphoric mood. At a December 2010 RO hearing before a Decision Review Officer, the Veteran reported difficulty concentrating at work and difficulty waking up. The Veteran reported experiencing some loss of memory with names. The Veteran stated he felt he was becoming more reclusive. A January 2011 VA mental health treatment record notes the Veteran reported being socially withdrawn and avoidance of friends. The Veteran reported poor concentration and focus. The VA treatment record notes the Veteran was anxious and agitated and that the Veteran's sleep remained poor. A February 2011 VA mental health treatment record notes that the Veteran had symptoms of depression and anxiety. The Veteran reported working only part time because of physical and emotional exhaustion related to anxiety he feels all the time. The Veteran reported feeling intense and immobilizing anxiety several times a week, but not full panic attacks. The February 2011 VA treatment record notes that the Veteran had decreased attention and concentration. In April 2011, the Veteran underwent a VA examination. The Veteran reported that his mood was depressed. The VA examination report notes that Veteran's affect was one of irritability. The Veteran reported sleeping four to five hours per day. The Veteran reported that he has a panic attack once every two to three months. The Veteran was assigned a GAF score of 57. The VA examiner that the Veteran's service-connected anxiety disorder had more likely than not increased since the December 2009 VA examination, that the Veteran continued to endorse symptoms consistent with anxiety disorder, and that his depression and periodic panic attacks are secondary to his decreased functioning resulting from anxiety. Based on the foregoing, the Board finds that, for the entire initial rating period, the Veteran's anxiety disorder, NOS, has been characterized by symptoms of depressed mood, anxiety, chronic sleep impairment, irritability, panic attacks once every two to three months, and mild memory loss of forgetting names, many symptoms of which are associated with the 30 percent rating. Assignment of staged ratings has been considered, but found not to be applicable in this case. The Board finds that, throughout the entire rating period, the Veteran's anxiety disorder symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which more nearly approximates the criteria for a 30 percent disability rating under Diagnostic Cod 9413. 38 C.F.R. §§ 4.3, 4.7. The appeal for a higher initial rating is fully granted in this Board decision. At the June 2013 Board hearing, the Veteran specifically indicated that a 30 percent disability rating would fully satisfy the appeal as to this issue. See hearing transcript p. 15. Additionally, in the February 2010 Notice of Disagreement and the July 2010 Substantive Appeal, the Veteran stated he believed he met the 30 percent evaluation criteria. Thus, this grant of a 30 percent disability rating is a full grant of the benefits sought on appeal as to this issue. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's waiver of the remaining aspects of the appeal for higher initial rating for anxiety disorder, NOS, in excess of the 30 percent granted was knowing and intelligent, was made with representation and in the presence of his representative, and was supported by the Veteran's testimony and the evidence of record. Because a 30 percent initial disability rating for anxiety disorder is granted for the entire period of this appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent. See 38 C.F.R. § 20.204 (2013) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any questions of a higher initial disability rating in excess of 30 percent are rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service-connected anxiety disorder, NOS, more closely approximates the criteria for a 30 percent rating under Diagnostic Code 9413 for the entire appeal period; therefore, the appeal is fully granted. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for anxiety disorder, NOS. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's anxiety disorder, NOS, is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9413, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's anxiety disorder, NOS, has manifested by depressed mood, anxiety, chronic sleep impairment, irritability, panic attacks once every two to three months, and mild memory loss of forgetting names. These symptoms are part of the schedular rating criteria. The level of occupational and social impairment is explicitly part of the schedular rating criteria. The GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the acquired psychiatric disorders, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the question of whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) is moot, as the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent, the full grant of benefits in this case also effects withdrawal of extraschedular rating considerations. See 38 C.F.R. § 20.204. For these reasons, any questions of an extraschedular disability rating are also rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104. ORDER An initial disability rating of 30 percent for anxiety disorder, NOS, but no higher, is granted. REMAND In August 2009, the Veteran filed a claim, in part, for service connection for PTSD. Following a December 2009 VA examination, the RO granted service connection for anxiety disorder, NOS, and assigned a 10 percent disability rating. In February 2010, the Veteran filed a Notice of Disagreement expressing disagreement that he was not also granted service connection for PTSD. Although the disagreement was timely filed, the Veteran has not been issued a statement of the case addressing the issue of service connection for PTSD. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral to the RO, is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Consequently, the Board must remand the issue of entitlement to service connection for PTSD for further procedural action. Accordingly, the issue of service connection for PTSD is REMANDED for the following action: The AOJ should issue a statement of the case that addresses the issue of entitlement to service connection for PTSD. The Veteran should be informed that, in order to perfect an appeal of this issue to the Board, he must file a timely and adequate Substantive Appeal following the issuance of the statement of the case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs