Citation Nr: 1335643 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-48 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an evaluation in excess of 50 percent for an anxiety disorder. 2. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: New Hampshire State Veterans Council ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1955 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Manchester, New Hampshire, regional office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to an increased rating for anxiety disorder and entitlement to TDIU. The Board remanded the appeal in April 2013. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's anxiety disorder is manifested by deficiencies in most of the areas of work, school, family relations, judgment, thinking and mood without total occupational and social impairment. 2. The service connected anxiety disorder precludes employment for which the Veteran would otherwise be qualified. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.130, Code 9400 (2013). 2. The criteria for TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran was provided with a letter in July 2009 that contained all of the notification required by the VCAA. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The duty to assist has also been met. All relevant VA treatment records have been obtained, and the Veteran has not identified any private treatment. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the record. The Board's remand instructed that current VA treatment records should be obtained, and that the Veteran should be afforded a new VA examination. The Appeals Management Center completed this development. There is no indication that further notice or assistance would be reasonably likely to aid the Veteran in substantiating the claims. Increased Evaluation The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant may; however, experience multiple degrees of disability that might result in different levels of compensation during the pendency of the claim. Hart v. Mansfield 21 Vet. App. 505 (2007). The period for consideration begins one year prior to the date of claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that entitlement to service connection for an anxiety disorder was established in a January 2005 rating decision, which assigned a 30 percent rating. The 30 percent evaluation was increased to 50 percent in an April 2006 rating decision. The Veteran submitted his current claim for an increased rating in June 2009. The Veteran's anxiety disorder is evaluated under the General Rating Formula for Mental Disorders. Under this formula, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. A 70 percent evaluation is merited 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 an inability to establish and maintain effective relationships. A 50 percent evaluation 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, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Code 9400. The symptoms listed in the rating criteria for psychiatric disabilities are not exclusive. Instead, the level of impairment produced by all symptoms must be considered. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Another tool that can be useful in evaluating the Veteran's disability is his score on the Global Assessment of Functioning (GAF) scale. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). A GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. A GAF score of 41 to 50 signifies 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). Ibid. The assigned rating is to be based on all the evidence that bears on occupational and social impairment. See 38 C.F.R. § 4.126(a) (2013); VAOPGCPREC 10-95 (Mar. 1995). Evidence In applications for TDIU received in June and September 2009, the Veteran reported that he had last worked in September 2005. He reported employment experience in maintenance and as a mechanic. His last employment had ended because of his disability, which he described as "PTSD." He had completed one year of high school and reported no additional training. By contrast, the report of a VA examination in December 2004, relates that he had retired and was "on disability" due to problems with his hands. The Veteran underwent a VA psychiatric examination in December 2009. The claims folder was reviewed by the examiner. The Veteran reported that his symptoms were "depression, nervous all the time." He also reported difficulty in finding a job due to his age. He was being seen for treatment at the VA once every two months, which he believed was helpful. The Veteran reported that his relationships with his wife and son were good. He had last worked in 2003 at a part time job doing maintenance type work. On mental status examination, the Veteran's behavior was tense and his speech hesitant. His mood was anxious and his affect was appropriate to his mood. The Veteran was very nervous, could not sit still, and was blinking all the time. There were no hallucinations or delusions; his thought process was circumstantial; he denied any suicidal or homicidal ideation; and he was oriented times three. The Veteran had mild problems with attention and concentration resulting in mild short term memory problems, but long term memory was intact. Reasoning and judgment were normal. The Veteran rated his depression as an 8 and his anxiety as a 9 on a scale to 10. There was no impairment of thought process or communication, and no problems with personal hygiene. The diagnoses were anxiety disorder, not otherwise specified, and a depressive disorder that was not otherwise specified. His score on the Global Assessment of Functioning (GAF) scale was 45. The examiner noted that the Veteran required continuous medication. The examiner checked a box on the examination form indicating that the Veteran had reduced reliability and productivity due to his mental disorder. The examiner described the symptoms as of a serious nature, which moderately interfered with employment functioning and moderately to seriously interfered with social functioning. The record also includes VA treatment records dated from 2004 to May 2012, which show that the Veteran was seen at the VA mental health clinic approximately every two months from September 2010 to May 2012. His symptoms during this period included anxiety, which was helped by regular medication. He also experienced irritability, but was not having any sleep problems. His speech was pressured, and his mood was anxious, but there were no perceptual disturbances, and his thought process was normal. His mood was also depressed. Goals were to decrease anxiety and improve mood and sleep. The Veteran denied both homicidal and suicidal ideations during this time frame. GAF scores ranged from a low of 50 on several occasions to include April 2011, to a high of 58 in September 2011. The Veteran's most recent VA examination in July 2013, was conducted by the examiner who had provided the December 2009 examination. Symptoms attributable to the anxiety disorder included restlessness, feeling keyed up, fatigue, forgetfulness, and sleep disturbance. He had been married for 47 years but believed the relationship was rocky. The Veteran had a good relationship with a son. He had not worked since 2003, but serious physical conditions precluded him from many jobs. On mental status examination, the Veteran was groomed and dressed appropriately. His hands would occasionally shake. Speech was normal, mood was anxious and depressed; but there were no hallucinations or delusions. Judgment was normal, and his energy level was self described as "normal". The examiner checked the boxes on the symptom list that included depressed mood; anxiety; chronic sleep impairment; mild memory loss; impairment of short and long term memory; and difficulty in establishing and maintaining effective work and social relationships. The diagnosis was anxiety disorder not otherwise specified, and a depressive disorder not otherwise specified. His GAF score was again estimated to be 45. The examiner again checked the box indicating that the Veteran's level of social and industrial impairment was best described as occupational and social impairment with reduced reliability and productivity. The examiner also opined that it was at least as likely as not that the Veteran's psychiatric disability would preclude him from securing and maintaining gainful employment. He provided a rationale for this opinion. Analysis A veteran may only qualify for a given rating based on psychiatric disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Although a veteran's symptomatology is the primary consideration in assessing veteran's disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In this case the examination and treatment records document deficiencies in the areas of work, mood and family relations. The Veteran has not attempted schooling, but it is likely that the deficiencies affecting the area of work would also cause deficiencies in the area of school. Although the Veteran has not been shown to have deficiencies in the areas of judgment and thinking; the evidence indicates that he has deficiencies in most of the areas needed for a 70 percent rating. The evidence does not show that he has symptoms that would equate to those envisioned for a 100 percent rating. He has not been shown to have any of the specific symptoms listed in the criteria for a 100 percent rating, and he does not have total social and occupational impairment. In this regard, he has been married for decades, albeit with some difficulties in that relationship. He has also maintained a good relationship with his son and grandchildren; VA treatment record show that he occasionally has coffee with friends. Hence, the preponderance of the evidence is against a finding that his disability meets or approximates the criteria for a 100 percent rating. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Extraschedular When the schedular criteria are inadequate, a claim will be referred to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2011); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular criteria in this case are adequate. They contemplate all social and occupational impairment. The record does not show any symptoms that are not contained in these rating criteria. Accordingly, referral for consideration of an extra-schedular rating is not warranted. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). The Veteran meets these percentage requirements. In this case, the Veteran's only service connected disability is his anxiety disorder. On the VA examinations during the appeal period, the Veteran was given GAFs indicative of an inability to keep a job, and the examiner explicitly opined that the Veteran's service connected disability would preclude gainful employment. VA treatment records show that the psychiatric disability has varied from moderate to severe, but the assessments of moderate disability were only achieved with intensive therapy and medication; and the Veteran reportedly deteriorated whenever there was stress in his life. Resolving reasonable doubt in his favor, the criteria for TDIU are met. 38 U.S.C.A. § 5107(b). ORDER An increased rating of 70 percent for anxiety disorder is granted. TDIU is granted. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs