Citation Nr: 1518641 Decision Date: 04/30/15 Archive Date: 05/05/15 DOCKET NO. 13-17 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for adjustment disorder with anxiety. 2. Entitlement to an initial rating higher than 10 percent for tinnitus. 3. Entitlement to a compensable rating for headache syndrome. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty for training from January 1998 to May 1998 and on active duty from February 2004 to January 2011. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the RO in San Diego, California, in pertinent part, granted service connection for an adjustment disorder with anxiety and assigned an initial rating of 10 percent, effective January 26, 2011. The RO in Newark, New Jersey granted service connection for tinnitus assigning a 10 percent rating, effective September 17, 2013, and denied a compensable rating for headache syndrome in an April 2014 rating decision. Jurisdiction presently resides with the RO in Buffalo, New York. The Veteran's representative submitted additional evidence with a waiver of RO jurisdiction in March 2015; and also waived any additional period of time left in the 90-day waiting period since the Board's January 2015 letter. Therefore, a remand, pursuant to 38 C.F.R. § 20.1304 is not necessary; nor is any further delay warranted prior to adjudicating the Veteran's claim. The issues of entitlement to increased ratings for tinnitus and a headache syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's adjustment disorder with anxiety results in moderate occupational and social impairment with depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, obsessional rituals interfering with routine activities, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting; but does not result in deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating of 50 percent, but not higher, for an adjustment disorder with anxiety have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9440 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). 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. 38 C.F.R. § 3.159(b). 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). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in January 2010 as part of VA's Pre-Discharge Program, informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above, regarding his initial service connection claim for an adjustment disorder. The letter also provided the Veteran with information on how VA determines and assigns effective dates. As service connection, an initial rating, and an effective date have been assigned for the adjustment disorder the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, any further discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. Regarding the duty to assist, the RO has obtained the Veteran's service records. The Veteran is currently not under any psychiatric treatment. The RO provided him with a VA examination in March 2011. The Veteran submitted additional private medical evidence dated in September 2013 indicating a worsening in the Veteran's adjustment disorder symptoms. While this might in some instances trigger VA's duty to get the Veteran a more contemporaneous examination addressing the present severity of the Veteran's disability, in this instance, the private examination in September 2013 is thorough and addresses the pertinent criteria necessary to evaluate the Veteran's psychiatric disorder. While a Global Assessment of Functioning (GAF) score is not provided as part of the September 2013 examination, the rest of the examination findings provide enough information for the Board to grant a higher rating for the Veteran's psychiatric disability. As noted below, an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. Therefore, the Board finds that the evidence of record is sufficient to rate the Veteran's claim and no additional examination is warranted in this regard. All relevant records have been added to the file and considered in the below determination. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating for Adjustment Disorder The RO granted service connection for an adjustment disorder with anxiety assigned a 10 percent rating, effective January 26, 2011, in a February 2012 rating decision. The Veteran seeks a higher disability rating for his adjustment disorder with anxiety. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The criteria for evaluating a chronic adjustment disorder are found at 38 C.F.R. § 4.130, Diagnostic Code 9440. A 10 percent evaluation 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 evaluation 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The DSM-IV contains a GAF scale, with scores ranging from zero to 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. See VAOPGCPREC 10-95. A GAF score range, 61 to 70, means there are some mild symptoms (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, has some meaningful interpersonal relationships. The record shows that while the Veteran sought mental health treatment in service, he is not undergoing any current psychiatric treatment for his adjustment disorder. See e.g., March 2011 VA examination report. Thus, the only pertinent medical evidence regarding the Veteran's post-service symptoms is from the March 2011 VA examination report and September 2013 private examination report. The March 2011 VA examination report shows that the Veteran served in Iraq from June 2008 to August 2009 and had combat experience there. He was on his second marriage and had marital problems but had attended marriage counseling and had a self-described relationship with his two young children as "great." It was noted that the Veteran attended church and loved to cook. The examiner noted that the Veteran appeared to be functioning well despite chronic stress in his marital relationship. It was further noted that the Veteran reported meaningful activities and positive relationships with others. Regarding employment, the Veteran was unemployed. He had a GED and had reportedly taken some online courses while he was in Iraq. Socially, he indicated that he found it hard to befriend people and that he did not have many friends; he also noted that he was "jumpy" around people. He stated that he had problems with trust and did not like to stand next to people in stores. He noted that these symptoms presented following his return from Iraq and that he also had anxiety because he was not working. Currently, he slept four to five hours per night. Since returning from Iraq he would wake up one to two times per night and check the door locks and window locks. The Axis I diagnosis was adjustment disorder with anxiety. The GAF score was 65. The examiner determined that the Veteran was currently experiencing mild anxiety related to ongoing stressors (difficulties in his marriage) as well as adjustment to civilian life. The examiner further found that it appeared that the anxiety minimally impacted the Veteran's functioning. Overall the examiner found that the Veteran's mental disorder symptoms were transient or mild and decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. It was noted that the Veteran reported difficulty sleeping due to frequent wakening during the night but did not report daytime fatigue, and that he experienced anxiety related to the future of his marriage and current unemployment. A private psychologist filled out a VA Form 21-0960P02, Mental Disorders (Other Than PTSD and Eating Disorders) Disability Benefits Questionnaire in September 2013 and noted that the Veteran had a diagnosis of adjustment disorder with anxiety. The psychologist noted that the DSM-V did not utilize the Axis system or allow for use of a GAF score. The psychologist checked the box that Veteran's level of occupational and social impairment with regard to his mental health disorder was best summarized by occupational and social impairment with reduced reliability and productivity. The psychologist noted a review of the Veteran's claims file and that he had conducted a telephone interview in September 2013. Relevant social history included that the Veteran had separated from his second wife in April 2013 and that his two young daughters, ages 6 and 4, lived with his mother. He lived alone; he had difficulties with concentration, anxiety attacks, and forgetfulness. He also had a poor appetite and poor sleep. He prepared his own meals and indicated that he loved to cook, but he had no other special interests or hobbies. He avoided social activity as he was fearful of people. Relevant occupational history noted that the Veteran had dropped out of high school in 11th grade, but obtained his GED. He had worked at a roofing company and bank prior to the military, was a mechanic in the Army, and had been a stay-at-home dad since leaving the military. Presently he was planning on becoming a nurse. He had been in counseling in the military due to stress from the Army and marriage difficulties and continued to experience anxiety and motivational difficulties, but was not in mental health counseling or on psychotropic medication. The psychologist checked symptoms that applied to the Veteran's mental health disorder, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The psychologist also noted that the Veteran had a poor appetite and poor concentration. The psychologist also indicated that he had reviewed the March 2011 VA examination report and determined that the Veteran's anxiety levels and its effect on his overall functionality appeared to have increased in severity, with a concomitant ability to function in the workplace that suggested a "reduced reliability and productivity." The psychologist also determined, however, that the current level of severity of the Veteran's service-connected mental disorder was present when his claim for compensation was filed in January 2011. The psychologist went on to determine that with respect to the impact of the Veteran's adjustment disorder on any employment, the Veteran would miss two days from work per month due to his mental health problems; would need an average of one or more extra breaks per day of at least 15 minutes to regain focus, in addition to two 15 minute breaks and a 30-minute break for lunch; and that more than once per month the Veteran would respond in an angry manner but would not actually become violent. In evaluating the medical evidence of record, the Board finds that the Veteran's impairment due to his adjustment disorder with anxiety symptoms more closely approximates the criteria for a 50 percent rating. Specifically the evidence shows that the Veteran has depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, obsessional rituals interfering with routine activities, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The March 2011 VA examination report noted that the Veteran appeared to be functioning well despite chronic stress in his marital relationship, but also noted that the Veteran was unemployed with a GED and some online training courses and was dealing with the anxiety of being unemployed; did not have many friends and found it difficult to make friends or even be near people in public; had sleep difficulties; and also woke up frequently at night to check the door and window locks. Even though the examiner noted that the Veteran had transient and mild psychological symptoms, which is reflective of the criteria for a 10 percent rating under the relevant diagnostic code, the examination report actually shows that the Veteran demonstrated more moderate social and occupational impairment with respect to his adjustment disorder with anxiety. The GAF score of 65 provided in March 2011 also indicates more mild symptoms, as noted above. However, overall the Veteran still exhibited significant symptoms involving impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The September 2013 private psychologist also found that the Veteran had symptoms that are more consistent with a 50 percent rating for adjustment disorder with anxiety, including flattened affect, memory loss, anxiety attacks, poor appetite, poor sleep, problems concentrating, depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. He avoided social activities and still was not working. The psychologist also indicated that the Veteran had reduced reliability and productivity. These findings more closely approximate the criteria for a 50 percent rating for adjustment disorder with anxiety. The psychologist also determined that the current level of severity of the Veteran's service-connected mental disorder was present when his claim for compensation was filed in January 2011. This is inconsistent with the psychologist's prior remark that the Veteran's symptoms seemed to be more severe than previously shown; nonetheless, the Board resolves all doubt in the Veteran's favor that his adjustment disorder with anxiety symptoms have been severe enough to warrant a 50 percent rating for the entire appeal period. The Veteran does not meet the criteria for a 70 percent rating, as he is not shown to have more than moderate social and occupational impairment. While the September 2013 private psychologist noted that the Veteran had difficulty in adapting to stressful circumstances (including work or a worklike setting), which is one of the criteria for a 70 percent rating; and the Veteran also had obsessional rituals of checking the locks, which interfered with his sleep, which is another criteria for a 70 percent rating, the Veteran is not shown as having deficiencies in most areas. He likes to cook and states that he has plans to earn a degree as a nurse. He has anxiety attacks and depression but not near-continuous anxiety or depression affecting his ability to function. While he has difficulty in establishing and maintaining effective relationships, he is not shown to be severely impaired socially or occupationally. At one point he was going to church regularly and had some friends, though later in September 2013 it was noted that he avoided social activities. Occupationally, though he was still not working, he did have endeavors to go back to school, and the private psychologist determined that his work would be somewhat affected by his mental health symptoms but did not indicate any severe occupational impairment as result of the adjustment disorder with a anxiety. In addition he does not meet any of the criteria for a 100 percent rating for adjustment disorder with anxiety, as he is not shown to be totally impaired occupationally and socially. Occupationally, the Veteran remains unemployed but has not been found to be unable to work. Socially, while he avoided social activity and reportedly did not have many friends, he is not shown to be incapable of interaction with others. For all the foregoing reasons, the Board finds that the evidence supports the assignment of a rating of 50 percent, but not higher, for adjustment disorder with anxiety. Therefore, entitlement to an increased rating for the impairment associated with an adjustment disorder with anxiety is warranted. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. While the examiner indicated in the September 2013 report that the Veteran's symptoms had worsened since the last examination in March 2011, based on the findings on both examination reports including the finding by the private psychologist that his symptoms had been just as severe since the time the Veteran filed his original claim, it appears that the severity of his symptoms extended throughout the entire appeal period. To the extent that the Veteran has contended that his adjustment disorder with anxiety is more severely impaired than the rating assigned, the preponderance of the evidence is against the claim; and the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The record shows that the Veteran continues to be unemployed; but the record does not show, nor has the Veteran contended, that he has been rendered unemployable as a result of his adjustment disorder with anxiety. Therefore, any inferred TDIU claim is inapplicable in this case. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's adjustment disorder with anxiety (i.e., moderate occupational and social impairment with depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting) are not shown to cause any impairment that is not already contemplated by the rating criteria. While some of the findings are more indicative of a 70 percent rating including the obsessional ritual of checking locks that interferes with sleep, and the finding of difficulty in adapting to stressful circumstances, the 50 percent rating assigned under DC 9440 contemplates symptoms such as occupational and social impairment with reduced reliability and productivity due to such symptoms as impaired judgment, which would include his obsessive-compulsive tendencies, disturbance of motivation and mood, and difficultly in establishing and maintaining effective work and social relationships, and the Board finds that these rating criteria reasonably describe the Veteran's disability. With respect to the additional findings of decreased appetite, the Board also finds that the 50 percent rating would contemplate this symptom, as well. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002) (Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list.). For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to an initial rating of 50 percent, but no higher, for adjustment disorder with anxiety is granted, subject to the rules governing the payment of monetary benefits. REMAND After the RO granted service connection for tinnitus assigning a 10 percent rating, effective September 17, 2013, and denied a compensable rating for headache syndrome in an April 2014 rating decision, the Veteran submitted a notice of disagreement with this rating decision in March 2015. Therefore, a statement of the case addressing these issues should be provided. Accordingly, the case is REMANDED for the following action: Issue a statement of the case to the Veteran and his representative addressing its assignation of a 10 percent rating for tinnitus and denial of a compensable rating for headache syndrome. The statement of the case should include all relevant law and regulations pertaining to the claims. The Veteran must be advised of the time limit in which he may file a substantive appeal. See 38 C.F.R. § 20.302(b) (2014). Thereafter, if an appeal has been perfected, these issues should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs