Citation Nr: 1418924 Decision Date: 04/29/14 Archive Date: 05/06/14 DOCKET NO. 10-16 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial rating higher than 30 percent for generalized anxiety disorder before December 12, 2011, and a rating higher than 70 percent from December 12, 2011. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 2007 to January 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Board remanded the case for further development, which has been completed. FINDINGS OF FACT 1. Before December 12, 2011, generalized anxiety disorder was manifested by occupational and social impairment with reduced reliability and productivity. 2. From December 12, 2011, generalized anxiety disorder has manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Before December 12, 2011, the criteria for a 50 percent rating for generalized anxiety disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (2013). 2. From December 12, 2011, the criteria for a rating higher than 70 percent for generalized anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify The appeal arises from the Veteran's disagreement with the initial evaluations assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, and any additional notice is not required. Thus, 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). Duty to Assist As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records in support of a claim. The RO has obtained service records, VA records, and private records. Also, the Veteran has been afforded VA examinations. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Board finds that the VA examinations are adequate to decide the claim because, after a review of the record, the clinical data provided by VA examiners indicating the severity of the Veteran's generalized disorder allows the Board to rate the disability under all applicable rating criteria. The Veteran has not asserted, and the evidence does not suggest, that the disability has increased in severity since the Veteran was last examined by VA. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria Generalized anxiety disorder has been evaluated as 30 percent disabling prior to December 2011, and 70 percent disabling after December 2011, under Diagnostic Code 9400 under the General Rating Formula for Mental Disorders. Pursuant to Diagnostic Code 9400, the criteria for a 30 percent rating are 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). Pursuant to Diagnostic Code 9400, the criteria for a 50 percent rating are 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Pursuant to Diagnostic Code 9400, the criteria for a 70 percent rating are 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. Pursuant to Diagnostic Code 9400, the criteria for a 100 percent rating are 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 of 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) score is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health- illness." DSM-IV at 32. While the GAF score is relevant evidence, the GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder; rather the rating is determined by the application of the Rating Schedule, 38 C.F.R. Part 4, as explained above. Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. Evidence On VA examination in March 2009, the Veteran reported that she had entered service upon her graduation from high school and that she developed anxiety disorder during service, which was diagnosed during her psychiatric hospitalization for anxiety, depression, and suicidal ideation. At the time of the examination, the Veteran complained of severe anxiety, irritability, fatigue, impaired concentration, impaired sleep, low self-esteem, and a moderately depressed mood. The Veteran stated that she experienced about four panic attacks a week. She stated that within the last month, she started working as an administrator at a high school, but tended to isolate herself, because she distrusted her fellow employees, and she stated that she experiences occasional difficulty completing tasks due to impaired concentration triggered by anxiety. She stated that she had missed two days of work during her one month of employment due to anxiety. She stated that she was living with her parents with whom she had a stressful relationship, but she had a good relationship with her boyfriend. She stated that she engaged in leisure activities with friends. She denied suicidal ideation and assaultiveness. On mental status examination, the Veteran had severe anxiety and a moderately depressed mood, but no impairment of thought or communication, delusions or hallucinations, inappropriate behavior, suicidal or homicidal ideation, obsessive or ritualistic behavior, impairment of impulse control, or impaired memory. The Veteran had normal speech and exhibited normal personal hygiene. The VA examiner concluded that generalized anxiety disorder was manifested by moderate occupational impairment. The GAF score was 60. In April 2009, the Veteran attempted suicide by consuming 10 tablets of the non-prescription Benadryl after a disagreement with her boyfriend. She sought emergent care. The Veteran denied manic episodes or auditory or visual hallucinations. She characterized her relationship with her mother as strained, her relationship with her boyfriend as "good," although stating that they have occasional disagreements, and her relationship with several close friends as very good, stating that they would "drop anything for her when she is in trouble." She also stated that she "loved" her job. In June 2009, the Veteran received in-patient psychiatric care for suicidal ideation after she threatened to commit suicide after a disagreement with her boyfriend. Her neighbors overheard the threat and notified the police, who in turn admitted her for psychiatric treatment. At the time of this treatment, the Veteran stated that she had been experiencing three to four panic attacks a month since her discharge from service, and she stated that she has had thoughts of committing suicide by hanging herself. She further reported that in the past few weeks, she had been hearing a voice in her mind telling her that she is not good enough. She stated that she experienced anxiety due to the distance between herself and her boyfriend, who was in service and stationed in another state, and due to her stressful living situation resulting from her strained relationship with her mother. She did have several close friends. She stated she worked at a community college as a clerk. The GAF score was 20. In July 2009, the Veteran completed a suicide prevention plan with VA. The Veteran also participated in an individual psychiatric therapy. She stated that she experienced daily panic attacks for several weeks. The Veteran stated that her anxiety centered on her fiancé. She stated that she was employed full-time and planned on attending college in the fall. On mental status examination, no abnormalities were noted with the exception of an anxious mood and affect. The treating psychiatrist characterized the Veteran's suicide risk as low, as the Veteran reported some suicidal ideation but no intent or plan, and stated that the Veteran was functioning well, as she reported an improvement in her relationships with her mother and fiancé. The GAF score of 75. In November 2009, the Veteran stated that she had been distraught by her boyfriend's recent decision to terminate their relationship, but since then her functioning had improved, and she recognized several areas of needed self-improvement, including her dependency issues and low self-esteem. The Veteran reported successfully transitioning to living independently (apart from her parents) and relayed her plans for pursuing higher education. She continued to report a strained relationship with her mother, but characterized her relationships with her brother, sister, and father as "close." No abnormalities were noted on mental status examination, and the Veteran's mood was assessed as euthymic. The evaluating psychiatrist characterized the Veteran's prognosis as "very good." The GAF score was 75 to 85. In statements in January 2010 and February 2010, the Veteran stated that she had daily panic attacks, which were resulting in her being absent or tardy for work and school. She stated that she had asked her roommate to move out of their shared apartment because of the roommate's anxiety, which would trigger her own anxiety. She also stated that she was alienated from friends and her former boyfriend due to her panic attacks. On VA examination in December 2011, the Veteran stated that she was living independently and had entered a new romantic relationship, and she described her relationship with her current boyfriend as good. She further reported engaging in both part-time employment and attending some community college classes, working towards her goal of transferring to a university in several years to complete an undergraduate degree. The VA examiner noted that the Veteran experienced symptoms of a depressed mood, anxiety, panic attacks occurring weekly or less often, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The VA examiner concluded that the Veteran's generalized anxiety disorder was productive of occupational and social impairment with reduced reliability and productivity. The GAF score was 55. Analysis Before December 12, 2011, reconciling the various reports into a consistent disability picture, while there has been some fluctuation in the symptoms the disability picture had remained essential constant in symptomatology, in the clinical findings, and in the impact on occupational and social function. Under Diagnostic Code 9400, the symptomatology, the clinical findings, and the impact on occupational and social functioning more nearly approximated the criteria for a 50 percent rating, namely, occupational and social impairment with reduced reliability and productivity due to such symptoms as: panic attacks more than once a week, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Although the Veteran had some of the symptoms included in the criteria for the next higher rating, 70 percent, neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. As for the Veteran's symptoms that are included in the next higher rating, the Veteran had suicidal ideation, twice requiring emergent care between April and June 2009, but suicidal ideation, resulting in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood under the criteria for a 70 percent rating was not shown. The Veteran was employed full time, planned to attend college, and working on self-improvement. Although she had a strained relationship with her mother and her relationships with other family members was close and she maintained social relationships with a few friends. While her relationship with a boyfriend ended, her functioning improved. While the Veteran was often depressed and she had difficulty adapting to stressful circumstances, the effect had not resulted in the Veteran's inability to function independently or resulted in deficiencies in most areas, such as work or family relations under the criteria for a 70 percent rating. The overall symptoms did not more nearly approximate or equate to the criteria for the next higher rating, 70 percent, under Diagnostic Code 9400. From December 12, 2011, in the absence any evidence of 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 criteria for a 100 percent rating have not been met at any time during the appeal period. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned rating is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedule ratings are adequate. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, and the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating The Veteran has not raised and the record does not reasonably raise the claim for a total disability rating for compensation based on individual unemployability ORDER Before December 12, 2011, a 50 percent rating, but not higher, for generalized anxiety disorder is granted. From December 12, 2011, a rating higher than 70 percent for generalized anxiety disorder is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs