Citation Nr: 1336551 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 13-06 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to an initial rating greater than 30 percent for an anxiety disorder prior to April 2, 2013. Entitlement to an initial rating greater than 30 percent for an anxiety disorder from April 2, 2013. REPRESENTATION Appellant represented by: John R. Worman ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which granted service connection for an anxiety disorder at 30 percent. The issues have been recharacterized as indicated on the title page to comport with the evidence of record. FINDINGS OF FACT 1. Prior to April 2, 2013, the Veteran's anxiety disorder was manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to various symptoms. 2. From April 2, 2013, the Veteran's anxiety disorder was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to various symptoms. CONCLUSIONS OF LAW 1. Prior to April 2, 2013, the criteria for a rating in excess of 30 percent for an anxiety disorder have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, DC 9413 (2013). 2. Since April 2, 2013, the criteria for a 70 percent rating were met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.130, DC 9413 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claim Assistance Act of 2000 (VCAA) The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Principles of Increased Rating Claims 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. 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. 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 appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of the two disability ratings shall be applied, the higher 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. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Criteria: The Veteran is currently assigned a 30 percent rating for a service-connected anxiety disorder under 38 C.F.R. 4.130, Diagnostic Code 9413. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, or mild memory loss. A 50 percent rating is warranted when there is 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 warranted when there is 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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. 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). Facts and Analysis A November 2010 VA treatment record is the first evidence of record of mental health care. The Veteran presented with complaints of anxiety, nightmares, and irritability. He reported that he retired because his doctor advised him to do so after a knee replacement surgery. He denied any problems with his current living situation and reported that he spends time with his wife, children, and grandchildren. He reported that he has a few acquaintances, but no one with whom he discusses personal issues. He drinks about five to six beers a night. The VA physician noted that the Veteran was easily engagable with a coherent thought process and normal speech rhythm. He noted that the Veteran endorsed some symptoms of sleep problems and depressed mood. He concluded that the Veteran appeared to cope with his combat trauma through avoidant strategies, such as drinking. He diagnosed the Veteran with alcohol dependence and rule out posttraumatic stress disorder (PTSD). He prescribed Celexa for depression and anxiety as well as Trazadone for insomnia. On VA examination in March 2011, the Veteran reported that he enjoys good relationships with his siblings, children, grandchildren, and wife. According to the Veteran, his wife has no complaints regarding the Veteran's behavior other than his irritability. He used to eat out with friends, but had not done so recently. He sleeps four to five hours a night and estimates that he dreams about Vietnam five to ten percent of the time. His leisure activities include camping, fishing, watching TV, and gambling. While he enjoyed playing golf and basketball, he was unable to play as often due to his bad knees. The VA psychologist noted that there was no impairment of thought process or communication during the examination. The Veteran denied suicidal or homicidal ideation. Psychological testing revealed that the Veteran was depressed, but was getting out, and being busy helped his mood. While he exhibited symptoms of impaired impulse control, it did not have a significant effect on his motivation or mood. The Veteran exhibited persistent symptoms of increased arousal, including difficulty falling or staying asleep, irritability, and exaggerated startle response. The diagnosis was anxiety disorder; a GAF score of 60 was assigned. The psychologist opined that the Veteran's anxiety disorder symptoms were mild and would decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. During a telephonic consultation with a private psychologist, Albert H. Fink, in June 2012, the Veteran reported that he spends most of his time at home, avoiding social contact as much as possible. The Veteran stated that he is not interested in playing with his grandchildren and, instead, spends more time watching TV. He denied difficulty in attending to issues of personal care, but reported that as time moves on he gets more depressed and dreams a lot about Vietnam. Mr. Fink noted that the Veteran's judgment, speech, and insight were normal with no indications of unusual thought processes. After reviewing the Veteran's VA treatment records, Mr. Fink stated that the symptoms reported in the Veteran's VA treatment records clearly identify an Axis I diagnosis of posttraumatic traits that would suggest a GAF score of less than 60. He noted that the Veteran's self-report indicated additional symptoms of social avoidance, depressed mood, anhedonia, and increasingly disturbed dreams. A GAF score of 52 was assigned. He concluded that the Veteran would have difficulty interacting effectively with co-workers, the general public, and with supervisors. Mr. Fink noted that the Veteran would frequently decompensate if subjected to the normal pressures and constructive criticisms of a job. Additionally, the Veteran's concentration and ability to make independent decisions would be hindered. He opined that the Veteran would need to leave early or miss more than three days a month due to mental problems and that, at the very least, the Veteran's level of occupational and social impairment reduced reliability and productivity. During a second private psychological consultation in April 2013 with Heather Henderson-Galligan, PH.D., the Veteran reported that he was recently widowed after forty-one years of marriage. He stated that his children have to remind him to shave or shower. He sees his grandchildren more frequently because he feels they give him a reason to live. He continued to report symptoms of extreme anger and irritability. He said that medications do not work and that he continues to drink alcohol to calm and soothe his nerves, which does not always work. The psychologist noted symptoms of near continuous panic or depression, impairment of short-term memory, flattened affect, impaired judgment, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, neglect of personal appearance, and persistent danger of hurting himself or others. A GAF score of 53 was assigned. She concluded that the Veteran exhibited occupational and social impairment with deficiencies in most areas. Prior to April 2, 2013 The Veteran maintains that a higher rating is warranted based on Dr. Albert Fink's evaluation, which concluded that the Veteran experienced reduced reliability and productivity with additional symptoms of social avoidance, depressed mood, anhedonia, and increasingly disturbed dreams. Dr. Fink also concluded that the Veteran would experience difficulties concentrating and interacting with others. Notably, Dr. Fink's assessment that the Veteran experienced reduced reliability and productivity is similar to the criteria listed in a 50 percent evaluation. His occupational and social assessment, however, is not supported by the findings of his report. While Dr. Fink noted additional symptoms of social avoidance, depressed mood, anhedonia, and increasingly disturbed dreams as the basis of his diagnostic impression, such were not additional symptoms and were, in fact, noted and considered in the March 2011 VA exam. Specifically, the Veteran reported spending less time eating out with friends, endorsed symptoms of depression, and reported experiencing Vietnam related nightmares during the March 2011 VA exam. Significantly, Dr. Fink's record does not indicate that the Veteran experiences flattened affect, stereotyped speech, memory impairments, panic attacks, impaired judgment, or any such similar symptoms commonly associated with reduced reliability and productivity. In fact, Dr. Fink reported that the Veteran's judgment, insight, and speech were normal, with no indications of unusual thought processes. The Veteran also maintains that a higher rating is warranted based upon Dr. Fink's conclusion that the Veteran would miss three or more days of work per month due to difficulties concentrating and interacting with others. This assessment, however, is not supported by diagnostic testing ; and there is no record that the Veteran complained of problems concentrating during the clinical interview. To the extent that the Veteran's lack of interest in playing with his grandchildren represents an increase in the severity of his social avoidance, the Veteran's symptoms still do not approximate the level of symptomatology that would result in reduced reliability and productivity. Based on an interview with the Veteran in March 2011, the VA examiner concluded that the Veteran's anxiety disorder symptoms resulted in a decrease in work efficiency and ability to perform occupational tasks only during periods of extreme stress. The March 2011 VA assessment is more persuasive and probative regarding the severity of the Veteran's anxiety disorder prior to April 30, 2013 than Dr. Fink's. The VA examiner based his evaluation on a combination of direct and indirect means, including unstructured observation while interviewing the Veteran. The symptoms noted by the VA examiner are fully supported in the report. The Veteran's anxiety disorder symptoms more nearly approximate occupational and social impairment with a decrease in work efficiency and intermittent periods of inability to perform occupational tasks as evidenced by irritability and sleep disturbances. The Veteran's GAF scores assigned are consistent with the manifestations noted and reflect moderate symptoms. The preponderance of the evidence is against the claim for an increased rating prior to April 2, 2013; there is no doubt to be resolved; and an increased rating is not warranted. From April 2, 2013 The Veteran maintains that a higher rating is warranted based on the assessment completed by Dr. Henderson-Galligan on April 2, 2013. In her report, Dr. Henderson-Galligan concluded that the Veteran experienced occupational and social impairment with deficiencies in most areas due to, among other manifestations, suicidal ideation, neglect of personal appearance and hygiene, and near continuous panic or depression. Dr. Henderson-Galligan's assessment highlights a significant intervening event, the death of the Veteran's wife, that was not included in the previous VA and private psychological assessments. She found manifestations not present in the previous treatment records and examinations including suicidal ideation, neglect of personal appearance and hygiene, and near continuous panic or depression. She concluded that there was occupational and social impairment with deficiencies in most areas. Such manifestations support a 70 percent rating. There is, however, no evidence of total occupational and social impairment. While the Veteran's personal appearance was substandard and there was some evidence of an inability to perform activities of daily living, there was no evidence of gross impairment in thought process or communication; no persistent delusions or hallucinations; no grossly inappropriate behavior; no persistent danger of hurting self or others; no disorientation to time or place; and no memory loss for names of close relatives, own occupation, or own name. Accordingly, the assignment of a 100 percent rating is not warranted. The Board has considered whether referral for consideration of an extraschedular rating is warranted. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. The manifestations reported, however, are contemplated by the rating schedule. Other significant manifestations, not contemplated by the rating schedule, are not present. Accordingly, the assigned scheduler evaluation is adequate, and referral for extraschedular evaluation is not required. Thun v. Peake, 22 Vet. App. 111 (2008.) A request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). While the evidence of record indicates that the Veteran is currently unemployed, he reported that he retired after 33 years because his doctor advised him to do so following a knee replacement. He does not claim, and the evidence does not suggest, that he is unemployed because of his anxiety disorder. Therefore, Rice is inapplicable. ORDER A rating in excess of 30 percent for an anxiety disorder, prior to April 2, 2013, is denied. A 70 percent rating for an anxiety disorder, since April 2, 2013, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs