Citation Nr: 1342048 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-06 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial increased rating greater than 10 percent for an anxiety disorder not otherwise specified and primary insomnia. ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for an anxiety disorder not otherwise specified and primary insomnia, and assigned an effective date of November 1, 2010. In October 2012, the Veteran was scheduled for a VA psychiatric examination in order to further evaluate the most current level of severity of his disability. However, as he failed to appear for the VA examination and did not provide any explanation as to why he was absent, the Board will decide his claim based on the evidence of record. See 38 C.F.R. § 3.655(b) (if a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record). FINDING OF FACT The Veteran's anxiety and insomnia are shown to be manifested by a level of impairment that more nearly approximates that of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; his lowest GAF score in the appellate period was 65. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for an anxiety disorder not otherwise specified and primary insomnia have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 is 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). The Veteran's treatment records from the Portsmouth Naval Medical Center have been obtained; he did not identify any VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Although the Veteran indicated that he went to the Bethesda Naval Medical Center and Johns Hopkins for consultation, he stated in June 2011 that those consultations had merely confirmed that the tests and treatment provided by the Portsmouth Naval Medical Center were comprehensive and appropriate for his situation, and did not yield any suggested alternatives. Further, he did not request that VA obtain those records or submit waivers authorizing VA to do so. Therefore, VA does not have a duty to obtain the consultation records from Bethesda Naval Medical Center and Johns Hopkins. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). A VA psychiatric examination was conducted in October 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The Veteran's psychiatric symptoms were described in sufficient detail so that the Board's evaluation of the disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). II. Analysis In May 2011, the RO granted service connection for an anxiety disorder not otherwise specified and primary insomnia, and assigned a disability rating of 10 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413, effective November 1, 2010. The Veteran contends that he is entitled to an initial rating in excess of 10 percent. Principles for Rating Disabilities Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. See generally 38 C.F.R. §§ 4.1, 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether 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). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rating Criteria Anxiety disorders not otherwise specified are evaluated under a "General Rating Formula for Mental Disorders". See 38 C.F.R. § 4.130, Diagnostic Code 9413 (2013). The pertinent provisions of the General Formula are as follows: A 10 percent rating is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted where there is 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, or mild memory loss (such as forgetting names, directions, recent events). Id. Higher ratings are available for other, more significant manifestations which are not present here. The Global Assessment of Functioning is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, has some meaningful interpersonal relationships. Facts In October 2010, the Veteran was afforded a VA psychiatric examination. The Veteran reported that he was mentally well until May or June 2009, when he developed the sudden onset of epigastric distress. He reported that, as his frequent epigastric distress continued, he lost more than 10 pounds, but had since regained that weight. He also reported developing mild chest discomfort. The examination report reflected that a cardiologic evaluation had been negative. It also indicated that the Veteran was sent to Bethesda Naval Hospital, where no definitive findings were made. The Veteran was also evaluated in a sleep lab, but the test results were equivocal. The examiner, a psychiatrist, reported an overall impression that the Veteran did not have a clear organic medical problem accounting for his epigastric distress. The examiner reviewed the Veteran's military service information, which indicated that the Veteran had completed a 30-year tenure with the Navy and that he did not serve in a combat zone. The Veteran reported difficulty both falling asleep and remaining asleep, and stated that he was often tired during the daytime. The examination report reflected that the Veteran had not been clinically depressed, suicidal, homicidal, psychotic, manic, hypomanic, obsessive, or compulsive. There was no history of psychiatric hospitalization. The report also indicated that the Veteran's epigastric distress and sleeping were mildly improved, but still clinically significant, and that the three medications used by the Veteran were palliative for his symptoms. The Veteran reported that he had opted to take time off after his retirement, and stated that he would be seeking work in the civil engineering field in the near future. The examiner considered the Veteran to be a truthful and reliable historian. He observed the Veteran to have goal-directed speech and thought processes, and normal behavior during the examination. He observed the Veteran to be oriented to all spheres, with good memory function for three out of three objects at one and fifteen minutes. The examiner observed the Veteran's mood and affect as mildly anxious. He found the Veteran's fund of knowledge, insight, and judgment to be good. The examiner opined that the Veteran's insomnia was related to his continuing concerns about his epigastric distress. He provided a primary diagnosis of "anxiety disorder not otherwise specified" with a secondary diagnosis of "primary insomnia". He reported that the symptoms of both disorders overlapped with each other, and that the underlying entities could be distinguished from each other. The examiner found that the Veteran was able to comprehend and complete simple and complex commands and form appropriate social relationships. He opined that the Veteran was "capable of working on a full time basis from a mental health point of view". The examiner stated that the Veteran had always performed his work well and was opting to take time off. The examiner found that the Veteran was able to perform all activities of daily living, and did not require further diagnostic testing for mental health problems. He stated that the Veteran's symptoms had arisen during the past year. He cited imminent retirement from the Navy on Axis IV, and assigned a GAF score of 65. The record reflects that the Veteran has been treated at the Portsmouth Naval Medical Center for anxiety and insomnia since September 2010, with the most recent treatment note dated from February 2012. The Veteran was seen on a monthly or sometimes biweekly basis. During this period, the Veteran's treating physician, Dr. Kennedy, prescribed various medications for the Veteran's anxiety and insomnia, and documented fluctuations in his condition. Dr. Kennedy's treatment notes indicated that these fluctuations resulted from the effectiveness and side effects of the various medications tried. In September 2010, the Veteran reported having a good retirement ceremony and that he was "no longer miserable". He continued to have difficulty sleeping. A treatment record from later that month indicated that the Veteran remained stable but was only at 60 percent of his normal self. At that time, the Veteran reported his condition was much better than it had been one year ago. In October 2010, the Veteran reported that his anxiety was much improved, but that he was not sleeping as well. He reported experiencing an occasional skipped heartbeat and occasional nausea before eating food. In November 2010, the Veteran reported sleeping better with the new medication, but with increased nausea and daytime fatigue. He also reported that he "never feels good" and his wife reported that his condition put high stress on their family life. The physician observed that the Veteran did not appear depressed, although the Veteran admitted frustration. In December 2010, the Veteran reported his anxiety and nausea had worsened and then improved with the changed doses of medication. He noted that his symptoms improved later in the day. He also reported frustration that his life was "on hold". He related good communication with his spouse. Later that month, he reported continuing to be very anxious in the morning but then improving by midafternoon and evening. He stated that he did not go to parties, but that he felt well enough to go out in the evening. A January 2011 treatment record indicated the Veteran's condition was stable. The Veteran reported sleeping better, but remained anxious in the morning with some nausea. He reported that his condition improved later in the day, especially if he exercised. He reported no panic attacks and no rapid heart action lately. Later that month, the Veteran reported negative side effects from one prescription that he discontinued. He related that he was doing okay but that he still did not feel well enough to find and work a job. Dr. Kennedy observed him to be intelligent, conversive, and committed to improvement. In February 2011, the Veteran reported fluctuating symptoms with the changes in medication dosages. He stated that his anxiety was worse on first awakening and improved as the day went on. On a scale of 1 to 10, with 10 being normal, he rated himself as 3 in the morning and 6 in the evening. He stated that his appetite was okay and his weight was back to normal. The Veteran reported that he did not feel he could hold a job in his current condition. In March 2011, the Veteran reported gradually improving over time. He stated that his stomach was still upset in the morning and that his voice often failed when at all stressed. He reported recently attending a party and having a good time, but had felt a muscle twitching in his shoulder and chest. The Veteran stated that he did not feel he could hold a job in his current condition. In May 2011, the Veteran reported no change in his condition, but stated that he had gone back to work part-time in the afternoons. He stated that the company wanted him to come to work full-time and that the job might involve a lot of traveling. A June 2011 treatment record reflected that the Veteran's condition remained mostly unchanged, although he did report increased anxiety as he decreased one of his medications. Later that month, Dr. Kennedy found the Veteran's condition to be stable but not improved and not acceptable. In the Veteran's June 2011 notice of disagreement, he contended that he was entitled to a higher disability rating for his disorder because his symptoms had been nearly continuous since onset in 2009 and were not controlled by medication. He reported recurring symptoms of anxiety, nausea, fatigue, and chronic sleep impairment. He also stated that the severity and frequency of symptoms was such that he had been unable to hold full-time employment and had only recently (in May 2011) been able to return to work on a part-time basis of 20 hours a week or less, working afternoons and doing work that did not require travel. The Veteran asserted that individuals with his experience and position of responsibility were expected to work full-time and to be able to travel extensively, so his disorder had impacted the type of work and positions of employment that he was able to obtain. The Veteran indicated that his primary care physician was Dr. Kennedy at the Portsmouth Naval Medical Center, and that while Dr. Kennedy tried a number of medications and combinations of medications, they had been unsuccessful in eliminating or reducing the severity of his symptoms, with the exception of some improvement in sleep through the use of Remeron. The Veteran referenced consultations at Bethesda Naval Medical Center and Johns Hopkins. He stated that the consultations confirmed that the tests and treatment provided by the Portsmouth Naval Medical Center were comprehensive and appropriate for his situation, and that they did not yield any suggested alternatives or result in any improvement of his condition. He concluded by stating that his symptoms were not mild or transient, were not controlled by medication, and that his disorder impacted his occupational and social functioning more than just during periods of significant stress. In July 2011, the Veteran reported that he had not improved. He stated that he still exercised in the morning and worked part-time in the afternoon. His physician changed his medications. An August 2011 treatment note reflected that the Veteran's condition remained unchanged. The note indicated that the Veteran had first experienced tachycardia and panic about two and a half years ago, and that he was doing much better since then. The Veteran reported that he had been in a low stress job for a year when it happened. In October 2011, the Veteran reported a worsened condition as his medications were decreased. He reported no tachycardia or panic attacks, but continued to experience nausea and anxiety. He stated that he was able to "put on a good face" in public. He reported continuing to force himself to exercise and do things. His wife stated that, at home, he "falls to pieces in his anxiety". The Veteran stated that there was no emotional issue deeper than "just feeling the anxiety". A November 2011 treatment note reflected that the Veteran had "another rough month" with no improvement in his symptoms. Dr. Kennedy changed the Veteran's medications because his disorder was "not well controlled" on the current ones. In December 2011, the Veteran reported feeling really good for a while, but also stated that he was not as good in the mornings. He reported working from 1100 often to 1700, and also reported going out and doing things. Dr. Kennedy noted some improvement. In January 2012, the Veteran reported working from 1100 to the evening, for seven to eight hours a day. The treatment note reflected that the Veteran was "functioning much better than before". The Veteran also reported doing better in social situations. He reported anxiety and nausea in the morning that decreased in the afternoon, and reported sleeping well. In February 2012, the Veteran reported working full time but still starting late in the day. He also reported sleeping well overall. Dr. Kennedy noted that the Veteran should continue his present medicine regimen. The Veteran's March 2012 letter accompanying his Appeal included substantially similar assertions as those from his June 2011 notice of disagreement. He reiterated that his symptoms were only minimally controlled by medication. He added that his disorder had limited him to doing technical work instead of managerial work. He also added that his social life had been impacted by his condition, since he rarely felt well enough to do anything outside of the home except work, which was something he felt compelled to do regardless of how he felt. He stated that on rare occasions he attended social functions, but mostly of short duration with a small group of intimate friends or family on special occasions or holidays, and that his only travel had been to visit family. The Veteran also reported that his anxiety and accompanying nausea and fatigue were frequently of such intensity that they were disabling, particularly during the mornings, and that he was unable to perform occupational tasks until the symptoms were reduced in intensity, which usually took three to four hours from awakening. He also contended that, even when his symptoms subsided, they resulted in decreased work efficiency compared to how he was normally able to perform. Analysis The Board finds that the Veteran's disability picture most nearly approximates the level of severity warranting a 10 percent rating under the General Rating Formula for Mental Disorders. In October 2010, the VA examiner opined that the Veteran was able to work in a full-time capacity, and stated that the Veteran was electing to take time off after retiring from the Navy. Although the examiner observed the Veteran to be mildly anxious and made a secondary diagnosis of primary insomnia, his report of the Veteran's condition did not reflect the criteria required for a 30 percent disability rating. His finding that the Veteran was capable of working full-time would preclude "periods of inability to perform occupational tasks" under the next higher (i.e. 30 percent) rating. The Veteran, as a layperson, is competent to report matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993). However, when assessing credibility and probative value, such assertions must be weighed against medical and other pertinent evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board may discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). From January to March 2011, the Veteran told his primary care physician, Dr. Kennedy, that he felt unable to work. However, Dr. Kennedy did not make any objective findings of inability to work during the period on appeal. In fact, in January 2012, Dr. Kennedy reported that, although the Veteran required a late start in the morning, he was nevertheless working full-time, seven to eight hours a day. The treatment records from Dr. Kennedy are highly probative, as he is the Veteran's primary care physician. Although the Veteran is competent to testify as to the severity of his symptoms, the Board finds the treatment records from his primary care physician to be of greater probative value. Those treatment records show fluctuations in the Veteran's condition as new combinations of medications were tried, but with an overall improvement in his symptoms. In particular, the treatment notes from December 2011 to February 2012 reflecting that the Veteran was functioning much better than before and sleeping well contradict the Veteran's March 2012 statement that his condition was only minimally controlled by medication. Further, while the Veteran stated in March 2012 that he was only able to work part-time, January 2012 and February 2012 treatment notes from his primary care physician indicated that he reported working full-time. Further, while the Veteran is competent to report his symptoms, he has not been shown to possess the competence to identify a specific level of disability of his disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's anxiety disability has been provided by the VA psychiatrist who examined him in October 2010 and who rendered medical findings and an opinion that addresses the criteria under which the Veteran's anxiety disability is evaluated. The Board finds the VA examination report and medical treatment records to be significantly more probative than the Veteran's subjective evidence of complaints of increased symptomatology. The October 2010 VA examiner's opinion that the Veteran was capable of working full-time, combined with the most recent treatment records from January and February 2012 indicating that the Veteran was working full-time, encompasses the entire appellate period. This evidence indicates that while the Veteran may experience decreased work efficiency due to mild or transient symptoms, he does not experience periods of inability to perform occupational tasks. The fluctuations in the Veteran's condition, as evidenced by the treatment notes from September 2010 to February 2012, are contemplated by the 10 percent rating, which addresses occupational and social impairment during periods of significant stress. Despite anxiety and nausea in the mornings, the Veteran has managed to shift his schedule accordingly, and the record reflects that he was working seven to eight hours a day as of January 2012. The Board considers this to be an important factor that precludes him from receiving the next higher (i.e. 30 percent) rating, as it does not show "periods of inability to perform occupational tasks". The Veteran was afforded an opportunity to obtain an updated VA examination in October 2012 to account for any potential increase in the severity of his condition since February 2012, the date of the most recent treatment note of record. However, the Veteran did not appear for the VA examination, and did not provide any reason as to why he did not attend. As a result, the Board must make its decision based upon the evidence of record, which does not support a higher rating. The schedular criteria for a higher rating were not met at any point during the course of the appeal and staged ratings are not warranted. See Fenderson, 12 Vet. App. 119 (1999). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an initial increased evaluation for an anxiety disorder not otherwise specified and primary insomnia is not warranted. Extraschedular Consideration An extraschedular disability rating is warranted 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); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Veteran's symptoms are contemplated by the evaluation presently assigned. The evidence of record indicates that the Veteran experiences anxiety and nausea in the morning but works full-time with an adjusted schedule. The record also indicates that the Veteran had difficulty sleeping, but that medication addressed that problem. As the rating criteria reasonably describe the Veteran's disability level and symptomatology, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). A referral for an extraschedular rating is not warranted. ORDER An initial increased rating greater than 10 percent for an anxiety disorder not otherwise specified and primary insomnia is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs