Citation Nr: 1548036 Decision Date: 11/13/15 Archive Date: 11/25/15 DOCKET NO. 13-10 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a higher initial rating for anxiety disorder not otherwise specified (anxiety disorder), rated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) that granted service connection for an anxiety disorder, effective July 25, 2006. The Board previously remanded this matter for development in June 2015. FINDINGS OF FACT 1. Since the effective date of service connection, the Veteran's anxiety disorder has been manifested by symptoms productive of occupational and social impairment with occasional decrease in reliability or productivity; reduced reliability and productivity has not been shown. 2. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 30 percent for generalized anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2015). 2. The requirements for establishing entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veteran's Claims Assistance Act Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The Veteran's claim of entitlement to a higher initial rating for an anxiety disorder stems from his 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. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VCAA notice regarding the TDIU issue was provided in August 2015. In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records, and VA examination reports. The Board notes that the actions requested in the June 2015 remand have been undertaken. A VA examination was conducted in August 2015 and the Agency of Original Jurisdiction (AOJ) provided VCAA notice regarding what is needed to substantiate a claim for TDIU in August 2015 and asked the Veteran to complete a VA Form 21-8940. However, the Veteran did not submit the completed form. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Higher Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2015); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2015); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2015); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2015). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In the March 2011 rating decision on appeal, the AOJ granted service connection for an anxiety disorder with an evaluation of 30 percent effective July 25, 2006. 38 C.F.R. § 4.130, Diagnostic Code 9413. Under Diagnostic Code 9413, 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; mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 (2015). 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; 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); 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; 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 (2015). 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 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). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). 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. Based on a review of the evidence of record, the Board finds that an initial evaluation in excess of 30 percent for the Veteran's service-connected anxiety disorder is not warranted. Since the grant of service-connection, the medical evidence of record reflects that the Veteran's PTSD was manifested by symptoms that included isolation, irritability, anger, trouble sleeping, hypervigilance, hyperactive startle reflex, nightmares, intrusive memories, anxiety, poor concentration, and reportedly poor short term memory. On examination, VA clinicians generally noted that the Veteran was well groomed, with a cooperative or normal affect, and that his speech was sometimes tangential. There was no evidence of auditory or visual hallucinations. While the Veteran did report one episode of suicidal ideation about one year before a March 2011 VA examination, he otherwise denied suicidal and homicidal ideation. In March 2011 a VA psychologist found that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and assigned a GAF score of 60. During that examination, the Veteran reported being divorced with five children. He stated that he keeps in contact with his ex-wife and noted that their relationship was "good." Regarding his other relationships, the Veteran noted that he did not have very good relationships with his children, but that he was close to his grandmother and saw friends from work about five times a week to play dominoes. The Veteran also reported dating off and on. The Veteran reported several hobbies including bowling with his son, drinking at clubs, and watching sports. At the time of the examination, the Veteran was working for a tobacco company as a fork lift operator and described his job performance as 10/10 (10 being the best job performance). The Veteran specifically denied any problems on the job, indicating that he arrived to work on time and stayed his entire shift. Pursuant to the June 2015 Board remand, the Veteran was afforded another VA examination in August 2015 with a VA neuropsychologist. At that time the Veteran reported that his mental condition had improved from prior years. He specifically noted having an active social life including playing in golf and billiard leagues. Regarding his social relationships, the Veteran noted having regular contact with four of his five children and living with one of his son. The examiner noted that the Veteran maintained fulltime employment for nearly forty years and that when the Veteran retired in 2013, it was on "good terms." While the Veteran did report some conflict with coworkers over the years, he was never fired or demoted by his employer for these issues. Ultimately, the examiner found that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In addition to the two VA examination reports discussed above, the record also contains February 2007 and May 2013 evaluations by Ms. Glogau, a licensed psychological associate who holds a master of arts degree, which was co-signed by Dr. Freeman. The reports, which are almost identical, note symptoms including hypervigilance, hyperarousal, low frustration tolerance, and limited insight and judgment. At the time of the 2007 evaluation, the Veteran apparently reported avoiding crowds and difficulty maintaining intimate relationships. In the 2013 report it was noted that the Veteran claimed that he had a hard time getting along with his supervisors and that his employer complained that he did not listen. Ultimately, in 2007 and 2013 Ms. Glogau assigned GAF scores of 39 and found that the Veteran's psychological symptoms interfered significantly in his personal and professional life and that he was permanently and totally disabled and unemployable. The Board finds that for the entire period on appeal, the Veteran's anxiety disorder most closely approximates the currently assigned 30 percent rating. While the Veteran reported during the 2015 VA examination that he sometimes finds it uncomfortable to be around people, he also reported participating in several group activities including golfing and playing pool. Moreover, the symptoms the Veteran described to the VA examiners, including nightmares, anxiety, and chronic sleep impairment, are contemplated by the 30 percent rating criteria. Although some of the Veteran's symptoms during that time period are not specifically enumerated in those criteria, the Board finds that, based on the Veteran's overall mental health picture as evidenced during the VA examinations, they were in keeping with a 30 percent rating. The Board has considered the findings reported by Ms. Glogau but ultimately finds that these reports are entitled to less weight than the findings on VA examination. Specifically, while Ms. Glogau opined that the Veteran's symptoms rendered him completely unemployable, these findings are inconsistent with the breadth of the evidence of record, including the Veteran's own statements. In this regard, the Veteran maintained fulltime employment until his retirement in 2013, over five years after Ms. Glogau first opined that his symptoms rendered him unemployable. Contrary to the findings in the private opinion, the Veteran reported at the 2011 VA examination that his work performance was excellent. Moreover, while Ms. Glogau noted the Veteran's avoidance of people in her 2007 report, the Board notes that the Veteran reported several group activities throughout the appeal including golfing in a league, participation in a billiards league, drinking at clubs, playing dominoes with colleagues, and bowling with his son. The Veteran also reported having good interpersonal relationships with his ex-wife, his grandmother, and some of his children. Further, although Ms. Glogau assigned a GAF score of 39 in conjunction with the 2007 and 2013 examinations, the Veteran was otherwise routinely assigned GAF scores in the 60s. Finally, the Board notes that Ms. Glogau is a licensed psychological associate with a master of arts degree which requires less training and skill in evaluating mental disorders than that of the 2015 VA examiner, a clinical neuropsychologist, or the 2011 VA examiner, a psychologist. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The Board has also considered the Veteran's assertions as to his symptomatology and the severity of his condition, but, to the extent he believes he is entitled to a higher rating, concludes that the findings during VA medical evaluation are more probative than the Veteran's lay assertions to that effect. While the Veteran has received VA treatment during the course of the appeal, except as discussed above with respect to Ms. Glogau's reports, the findings on those visits are consistent with the ratings currently assigned and with the findings on VA examination. As such, the Board has relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms, but nonetheless recorded mental status examinations showing limitation of function that more nearly approximate the criteria for a 30 percent evaluation. In sum, the Board finds that the preponderance of the competent and probative evidence more nearly approximates the criteria for a 30 percent evaluation, and an increased rating is denied. The Board has considered whether the Veteran's generalized anxiety 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); 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 a higher rating for additional or more severe symptomatology than is shown by the evidence. The Board also notes that it has considered all psychiatric symptomology in determining his functional impairment, not just the symptoms listed in the rating criteria. See Mauerhan, 16 Vet. App. 436. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against a higher rating, to that extent the doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TDIU As an initial matter, the Board notes that the Veteran has not claimed that his anxiety disorder prevents him from maintaining substantially gainful employment. However, as the Veteran's private licensed psychological associate claimed in 2007 and 2013 statements that the Veteran's psychiatric disability rendered him completely disabled, the Board took up the issue of entitlement to a TDIU in June 2015. See Rice v. Shinseki, 22 Vet. App. 447, 451-53 (2009). Following a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for a TDIU. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service-connected for anxiety disorder rated as 30 percent disabling, and diabetes rated as 20 percent disabling. His combined disability rating is 40 percent. The Veteran does not have a single disability rated as 40 percent or more, nor does he have a combined rating of 70 percent or more. Thus, he does not meet the schedular criteria and a TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Here, the Board finds that the Veteran has not satisfied the requirements for extraschedular referral under 38 C.F.R. § 4.16(b). In this regard, while Ms. Glogau opined that the Veteran's psychological disability rendered him permanently and totally disabled and unemployable, the Veteran himself has not made such an assertion. In this regard, the Veteran has consistently reported that he retired from his position as a forklift operator for a tobacco company due to his age and elegibilty for same. He further reported during his March 2011 VA examination that he was an excellent employee who reported to work on time, completed his work day, and performed at a level of 10/10. Accordingly, the opinion from Ms. Glogau is inconsistent with the other evidence of record, and is afforded little, if any, probative weight. Nor does the record otherwise show that the Veteran's service-connected disabilities have rendered him unemployable. On the contrary, VA examiners have consistently found that the Veteran's anxiety disorder does not result in total occupational impairment. Similarly, the examiner who performed an August 2015 VA diabetes examination also noted that his diabetes does not impact the Veteran's ability to work at all. For the reasons discussed above, the Board finds the Veteran's statements regarding his employment history and the findings on VA examination to be of greater probative value than the opinions provided by Ms. Glogau. The most probative evidence of record does not show that the Veteran is unemployable as a result of his service-connected disabilities. Thus, the Board finds that extraschedular referral under 38 C.F.R. § 4.16(b) is not warranted. ORDER A rating in excess of 30 percent for anxiety disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs