Citation Nr: 1610436 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 12-33 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial evaluation in excess of 50 percent for generalized anxiety disorder (GAD), prior to October 29, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2). The Veteran had active service with the United States Army from October 1951 to September 1953. This matter come before the Board of Veterans' Appeals (Board) on appeal from a September 18, 2009, rating decision, notice of which was mailed on October 1, 2009, by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which implemented an August 2009 Board grant of service connection for generalized anxiety disorder. The RO assigned an initial 30 percent evaluation effective from November 8, 2002, and a 50 percent evaluation from October 29, 2008. The Veteran appealed both stages of evaluation, and in a November 2014 decision the Board granted an increased 50 percent rating for GAD, effective prior to October 29, 2008. The evaluation since that date was remanded for further development. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC or the Court), which in November 2015, on the basis of a Joint Motion for Partial Remand, vacated that portion of the Board's decision which denied a rating in excess of 50 percent, and remanded it for further consideration. The Board notes that also in November 2015, the question of GAD evaluation since October 29, 2008, was returned to the Board and a decision denying the benefit sought was issued. The Veteran has appealed that denial to the Court, where it is currently pending. Accordingly, only the evaluation for GAD prior to October 29, 2008, is currently before the Board. In September 2014, the Veteran testified at a hearing held before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is associated with the claims file. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA (VVA) and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has asserted under questioning at his hearing that while he is not employed, such is due to retirement. He may not be able to go back to work if given the option, but that is not attributed to his psychiatric disability. He cited his physical problems; no TDIU claim is inferred. FINDINGS OF FACT 1. Prior to October 29, 2008,GAD was manifested by no worse than occupational and social impairment with reduced reliability and productivity, due to such symptoms as frequent nightmares, sleep disturbances, hyperstartle responses, anxiety and depression, mild memory disturbances, marital difficulties, emotional lability, and limited socialization. 2. Prior to October 29, 2008, the Veteran consistently denied any suicidal or homicidal ideation, and demonstrated no thought or speech disturbances. Though at times irritable, there were no violent acts, and the Veteran's grooming and hygiene remains good. He affirmatively denied difficulty adjusting to stressful circumstances. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 50 percent for generalized anxiety disorder prior to October 29, 2008, are not met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist 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, 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for generalized anxiety disorder. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. 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; his benefits are based on retirement and age. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in December 2002 and October 2008; the examiners made all clinical findings necessary to application of the rating criteria. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations are adequate for adjudication purposes. At the Veteran's September 2014 hearing, the undersigned discussed the elements of the claim on appeal, to include identifying the types of evidence and information which would be of assistance in substantiating them. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board would additionally note that a hearing was held at the RO before a Decision Review Officer in August 2004, and similar discussions took place. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims 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 Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that where a mental condition results in 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, a 50 percent rating is assigned. 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); inability to establish and maintain effective relationships, is rated 70 percent disabling. 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, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the impairment does need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). The Court found that the Board's explanation of why a rating in excess of 50 percent for GAD was not warranted was deficient; the justification of a 50 percent rating was not challenged. The Board will therefore focus on the applicability of the 70 and 100 percent rating criteria. The Veteran throughout the appellate period was receiving regular psychiatric treatment through VA. Progress notes reveal that the Veteran was on medication for his anxiety, and it was generally helpful, though over time he became less compliant with it and took it only as needed instead of regularly on a daily basis. His anxiety complaints are indeed seen to vary over time, without a general trend to improvement or worsening. Doctors repeatedly refer to GAD as being stable. The Veteran was consistent in denying suicidal and homicidal ideation, but his reports regarding his sleep and anxiety levels varied. At times he reported his sleep to be good, at 7 to 8 hours a night, but at other time he slept only 6 to 7 hours. Similarly, he stated that sometimes his mood was good, and at other times it was not. He had episodes of sadness intermittently, but none were of extended duration. The Veteran referred to "the same domestic problems," but did not provide any details. Once his disabled son was placed in a group home in 2004, he reported that his own home situation improved. At a December 2002 VA examination, the Veteran reported that socially, he remained married and lived with his wife and son, who had epilepsy. He referenced marital problems but was vague regarding details. He did state that he could be irritable and lose his temper. He had friends that he regularly visited at the barber shop, and stated that he did a little yard work and watched TV a lot. He continued to take his medication and saw a doctor every three months or so. The Veteran reported feeling more nervous and jumpy recently. On interview, the examiner noted the Veteran was alert and oriented. His hygiene was good, and his mood was euthymic (reasonably positive) and his affect appropriate. Episodes of sadness would come and go. Speech and thought processes were normal, and the Veteran denied any suicidal or homicidal ideation. He did complain of daily nightmares, and stated that he thought "too much." He repeated that he did socialize some, but as he was feeling more jumpy and nervous, was tending to stay home more often. The Veteran worried a lot, especially about finances, and sometimes felt hopeless in that regard. He was hypervigilant at times, and would jump due to trucks. The examiner stated that the veteran had "severe problems with anxiety," describing the Veteran as constantly nervous and worrying. He assigned a Global Assessment of Functioning (GAF) score of 55. A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 51-60 represents "[m]oderate 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)." Id. The Veteran testified at a hearing before a DRO at the RO in August 2004. He reported that when he watched TV, he often cried, and he had nightmares. The Veteran said he had not been going out too much with friends, but his family relationships were "pretty good." He did not indicate his temper was worse, but did state he was "slow in getting things." He denied having very many arguments with his wife or others. He did comment that he was more forgetful about tasks. However, he was able to adjust and deal with changes to his schedule or routine. When the Veteran was working, he got along with people; he cited only one problem, with a specific person who he believed was an ex-con. He never left a job over conflicts. He denied any thoughts of hurting himself or others. In an October 2007 statement the Veteran indicated that he felt stressed, and would grow frustrated when people spoke harshly to him. He continued to have nightmares. The Veteran was again examined in October 2008; this examination marked the start of the second evaluation stage considered by the Board in November 2014. As the evidence therein applies to a period not currently before the Board, it is not discussed in detail here. The Board would note, however, that the Veteran remarked on increased problems with his wife, who now lived with his daughter. They apparently fought more often; though he laughed when stating this, he also became tearful. Findings were otherwise highly consistent with the prior examination. He had frequent nightmares. He denied suicidal ideation, though he expressed feelings of hopelessness and worthlessness. He did not socialize. He remained well-oriented, and continued to attend to his personal hygiene. Mild memory impairment was reported. The Veteran did indicate that at times he felt he was being followed. A GAF score of 51 was assigned, and the examiner endorsed assignment of a 50 percent rating based on the schedular rating criteria. The Board continues to find that no evaluation in excess of 50 percent is warranted prior to October 29, 2008. Overall, the Veteran has not demonstrated impairment in most areas, to include work, school, family relationships, judgment, thinking, and mood, as is required for assignment of a higher, 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). Initially, the Board notes that examiners assign GAF scores consistent with no more than the moderate impairment a 50 percent rating reflects, and one examiner specified that this was the most appropriate rating. Such is not binding, but is informative and probative evidence. Treating doctors and, to an extent, examiners, also cite the stability of the Veteran's GAD. While symptoms waxed and waned over the appellate period, he continued to generally function well. He stated that he had no problems at work; he retired about 6 years before the period considered here, but does not indicate that he felt there had been a change in his functional capacity since, and no doctor finds such. He socializes less, but still, prior to October 2008, states that he gets along with his family to a great extent. The Board cannot speculate as to his vague domestic problems or any difficulties with his wife, and the first definitive evidence of a failure of that relationship comes outside the period considered here. Doctors repeatedly note the Veteran's judgement and insight to be intact. While he may be cognitively slow, he is well oriented and alert, and expressed his understanding of his problems and their impact. Importantly, treating doctors note his self-adjustment of medication for anxiety symptoms without condemnation. They do not insist that he take the medications on a schedule, though they note when effectiveness is reduced. Overall, the Board finds the doctors accede to the Veteran's medication regimen, based on their acceptance of his "as needed" treatment. All note the Veteran's mood to be generally upbeat, though at times he is clearly sad. He is cooperative and pleasant at interviews, with appropriate behaviors and reactions. Turning to consideration of the specific criteria listed under the General Rating Formula, there is no suicidal ideation or obsessional behavior. No panic attacks or continuous depression or anxiety are shown; some treating doctors specify the lack of any anxiety symptoms at times. Even though irritable, the Veteran is not shown to become violent, and describes himself as good hearted. He is well-oriented and takes care of his appearance and hygiene, even after his wife left the home. He denies difficulty adapting to changed circumstances, and there is no instance cite din which his behavior was ineffective or inappropriate. Though the listed criteria are not a laundry list, the absence of any of the listed examples under those criteria is highly probative and informative. No higher, 70 percent rating is warranted. Additionally, no total impairment of any area is shown or alleged due to GAD. The Veteran functioned fairly well prior to October 29, 2008. He was no danger to himself or others, and in fact denied such repeatedly and pointedly. He cared for himself regularly, and no examples of personal neglect are reported. There was no impaired reality testing; no delusions or hallucinations were reported. At most, the Veteran in October 2008 felt paranoid about being followed. This single mild example, however, does not serve to present a disability picture consistent with the criteria for a 100 percent rating. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the Schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the Schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the Schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Schedular criteria fully account for the symptomatology attributed to the generalized anxiety disorder, including anxiety, depression, social isolation, and marital problems. Further, all symptomatology is accounted for by the anxiety disorder and/or the separately diagnosed and compensated traumatic brain injury (TBI) disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Johnson v. McDonald, 762 F.3d 1362 (2014). The Schedule is adequate, and no further consideration of 38 C.F.R. § 3.321 is required. ORDER An initial evaluation in excess of 50 percent for GAD prior to October 29, 2008, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs