Citation Nr: 1338725	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  11-33 691	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an initial disability rating in excess of 30 percent for panic disorder without agoraphobia (hereinafter "panic disorder").


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 2000 to January 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal.  A review of the Virtual VA claims file reveals VA treatment records dated through July 2011, which have been considered by the RO in the January 2012 supplemental statement of the case.


FINDING OF FACT

The Veteran's panic disorder is manifested by symptoms of daily panic attacks, depressed mood, stuttering, chronic sleep impairment, poor impulse control, and suicidal ideation, which result in occupational and social impairment with reduced reliability and productivity.  


CONCLUSION OF LAW

The criteria for entitlement to an initial disability rating of 50 percent, but no higher, for panic disorder have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9412 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Here, the VCAA duty to notify was satisfied in a July 2009 letter to the Veteran.  The letter informed the Veteran of what evidence was required to substantiate her claims, as well as of VA and the Veteran's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.  

VA also has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of pertinent records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  VA has obtained all identified and available treatment records for the Veteran.  In addition, the Veteran underwent a VA examination in November 2009 and an addendum opinion was provided on March 2010.  The Board finds that taken together the November 2009 VA examination and March 2010 addendum opinion are adequate, because they included a review of the claims file, an interview of the Veteran, and examination findings supported by rationale.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board also observes that the Veteran has not contended, and the evidence does not suggest, that her panic disorder has worsened since the November 2009 examination.  For these reasons, further examination is not necessary.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of her claim.  The Veteran has not identified any outstanding evidence that needs to be obtained.  

For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran.  No useful purpose would be served in remanding this matter for yet more development.  Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran.  The Court has held that such remands are to be avoided.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II. Increased Rating

Service connection for panic disorder was established in an August 2010 rating decision, at which time the RO assigned an initial 30 percent disability rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9412, effective June 10, 2009.  The Veteran has appealed the assignment of the initial 30 percent disability rating.  For the following reasons, the Board finds that a 50 percent rating, but no higher, is warranted.  

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

Under Diagnostic Code 9412, which is governed by a General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and/or mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9412 (2013). 

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is warranted 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 work-like setting); and/or inability to establish and maintain effective relationships.  Id. 

A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.  Id. 

When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (2013). 

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)).  A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  A GAF score of 61 to 70 indicates some mild symptomatology (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.  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).  Scores ranging from 41 to 50 reflect 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).  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 (2013).

The Veteran contends that her panic disorder interferes with her ability to perform everyday activities, is difficult to control, and requires constant medication.  

Service treatment records dated December 2002, January 2003, and September 2003 reflect complaints for hot and cold flashes, heart palpitations, feelings of nervousness and tremors, weakness, dizziness and shortness of breath.  The Veteran reported that these symptoms lasted for a couple of hours.  There were no records that the Veteran received any medication for her symptoms. 

A March 2006 private treatment record shows that the Veteran sought emergency room treatment for anxiety.  She said she was out of her medication.  The record noted a diagnosis of acute anxiety attack and that the Veteran left prior to completing treatment.  

The only record of the Veteran's post-service VA treatment is a June 2011 VA treatment record notation - "panic attack - refuses [mental health] consult, start paxil."

At a November 2009 VA examination, the Veteran reported her symptoms of anxiety with panic attacks, depressed mood, stuttering, insomnia, and hypersomnia.  She described her panic attacks as moderate to severe, occurring daily, and lasting 30 minutes to an hour, her depressed mood as mild and occurring two to three times a month, and her stuttering as mild to moderate and occurring three times a month.  She said she slept more than 12 hours a night when she felt depressed and she had difficulty sleeping when she felt anxious.  The Veteran explained that she had a "bad temper" and was easily provoked.  She described an incident a month before her examination, where she was in an argument with a girlfriend and tried to run her over with her car.  She also reported having suicidal thoughts every three months.  She reported that in 2006, she drank to cope with the stress of her father's Parkinson's disease and she attempted suicide by deliberately crashing her car.  The Veteran said she felt alienated at work and quit her job as a nursing aid less than a year ago when she became angry with her boss and co-workers.  The Veteran reported that she was not married, but in a relationship of two and half years, had an "okay" relationship with her group of friends, whom she did not see regularly, and attended college as a full-time nursing student.  She said she was prescribed medication for her anxiety, but she stopped taking it about a month ago, because it affected her sleep.  She did not report any other mental health treatment.  

The VA examiner found that the Veteran's social functioning to be mild to moderately impaired.  The Veteran had clear and coherent speech, cooperative and attentive attitude, appropriate affect, clean and neatly groomed, unremarkable thought process and thought content, normal remote, recent, and immediate memory, no hallucinations or delusions, no obsessive or ritualistic behavior.  The examiner also found that the Veteran appeared restless, tense, and anxious.  The examiner reported that the Veteran did not have a problem with activities of daily living or an inability to maintain personal hygiene.  The examiner found that while the Veteran had the ability to act appropriately around others, the Veteran exhibited poor impulse control when she felt angered or provoked.  The examiner reported that the Veteran engaged in mostly socially isolating activities.  The examiner found that the Veteran's symptoms of stuttering, chronically depressed mood, and fleeting suicidal thoughts negatively impacted her social and occupational functioning.  The examiner diagnosed the Veteran with panic disorder and assigned her a GAF score of 62.  

In a March 2010 addendum, the VA examiner opined that the Veteran's panic disorder "likely represents an earlier manifestation of her anxiety condition that was treated while [she] was in the military."

Based on the foregoing evidence, and resolving any doubt in the Veteran's favor, the Board finds that the criteria for a 50 percent disability rating have been met.  In this regard, the November 2009 VA examination report reflects symptoms associated with a 50 percent rating, including disturbances of motivation and mood (i.e., easily provoked and "bad temper"), daily panic attacks, difficulty maintaining effective work relationships (i.e., quitting job after becoming angry with co-workers and supervisor), and impaired judgment (i.e., trying to run over a friend with her car).  The Veteran's reports of inappropriate reactions to stressful situations, as well as daily panic attacks, less frequent depressed mood, chronic sleep impairment, and suicidal thoughts, support a finding that the Veteran has a higher level of occupational and social impairment that is more appropriately characterized by a 50 percent disability rating.

However, the examiner's assignment of a GAF score of 62, which denotes mild symptoms or mild impairment, would generally weigh against assignment of a 50 percent rating under DC 9412, which requires reduced reliability and productivity.  See 38 U.S.C.A. § 4.130.  While "reduced reliability and productivity" is not defined in the General Rating Formula, it is necessarily more severe than an "occasional decrease in work efficiency" with "intermittent periods of inability to perform occupational tasks," as required for a 30 percent rating.  In this case, the evidence of record is equivocal, at best, with regard to whether there has been an occasional decrease in work efficiency associated with a 30 percent rating, let alone a more severe decline in work performance associated with a 50 percent rating.  The Veteran reported her feelings of social isolation at work.  She admitted to having a "bad temper" as exhibited by her decision to her quit her job as a reaction to problems with her co-workers and supervisors.  She also described the frequency and duration of her panic attacks, and although she did not report any specific incidents of them affecting her work, the Board finds it reasonable that the Veteran's panic attacks, which reportedly occurred on a daily basis and could last up to an hour, likely could have had a significant impact on her reliability and productivity at work.  In addition, the examiner found that the Veteran's stuttering, chronically depressed mood, and suicidal thoughts also had a negative impact on her occupational functioning.  Therefore, the record does show that the Veteran's ability to work has been significantly impacted by her panic disorder symptoms.  

The evidence also shows that the Veteran's social relationships have been impacted by her condition.  Although the Veteran reported being in a two and half year relationship, the examination report also reflects that the Veteran did not regularly interact with her friends and tended to do activities where she could be socially isolated.  In addition, the incident where the Veteran reported arguing with her friend and then almost running her over with her car suggests that her temper has impacted her social relationships.  The Board notes that social impairment alone cannot be the basis for a higher rating under the General Rating Formula.  See 38 C.F.R. § 4.126 (providing that while VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment).

In short, the Veteran's occupational impairment due to her panic disorder has been shown to be mild and social impairment to be mild to moderate.  The ratings assigned under the General Rating Formula turn on the level of occupational and social impairment caused by the types of symptoms (or symptoms equivalent in severity) associated with each rating.  See 38 C.F.R. § 4.130.  In this case, it is arguable as to whether the evidence of record demonstrates that the Veteran's panic disorder symptoms have resulted in the degree of occupational and social impairment (i.e. reduced reliability and productivity) associated with a 50 percent rating.  Nevertheless, given the VA examiner's findings of the Veteran's symptoms associated with a 50 percent rating, and the obvious impairment they have caused, the Board resolves any doubt in the Veteran's favor in finding that her panic disorder mostly closely approximately the criteria for a 50 percent rating.  

The Board has considered whether a rating in excess of 50 percent is warranted.  For the reasons discussed above, the Board concludes that the preponderance of the evidence weighs against a finding that the Veteran's panic disorder more closely approximates the criteria for a 70 percent rating.  Although the November 2009 examination report shows that the Veteran experienced suicidal thinking and poor impulse control, the report also described those thoughts as fleeting and found that the Veteran could act appropriately unless provoked.  The record does not reflect that those symptoms have caused "deficiencies in most areas," as required by the criteria for a 70 percent rating.  See 38 U.S.C.A. § 4.130.  Because the Board has found only mild occupational impairment which did not actually result in reduced reliability and productivity, and rather based the assignment of a 50 percent rating principally on the nature of the Veteran's symptoms, it follows that a 70 percent rating cannot be granted for more severe functional impairment. 

The Board also finds that the evidence of record does not support the assignment of a staged disability rating.  Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  After a careful review of the record, the Board can find no credible evidence to support a finding that the Veteran's panic disorder was more or less severe during the appeal period.  

The Board has also considered whether the Veteran's panic disorder presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) (2011);  Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  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.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence.  Thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran's panic disorder most closely approximates the criteria for a 50 percent rating.  As such, the benefit-of-the-doubt rule applies, and entitlement to a 50 percent rating, but no higher, for panic disorder is granted.  See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55.



ORDER

Entitlement to an initial disability rating of 50 percent for panic disorder is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs