Citation Nr: 1624678 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 09-00 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 30 percent for agoraphobia prior to May 2, 2008. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty with the Navy from July 1969 to January 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. A January 2012 rating decision increased the Veteran's disability rating to 70 percent, effective May 28, 2008. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2013. A transcript of that hearing is of record. In January 2014, the Board denied entitlement to a rating in excess of 30 percent prior to May 28, 2008, as well as entitlement to a rating in excess of 70 percent thereafter and entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In August 2014, the Court granted a joint motion for remand (JMR) vacating the Board decision with respect to the denial of entitlement to a rating in excess of 30 percent prior to May 28, 2008, and entitlement to a TDIU. The parties agreed that the Veteran abandoned the claim of entitlement to a rating in excess of 70 for the period beginning on May 28, 2008. In January 2015, the Board denied entitlement to a rating in excess of 30 percent prior to May 2, 2008, but allowed a rating of 70 percent and no higher for the period beginning May 2, 2008. This decision also remanded the claim for a TDIU for additional development. The Veteran appealed the portion of the January 2015 decision that denied entitlement to a rating in excess of 30 percent prior to May 2, 2008 to the Court, but left undisturbed the portion granting a rating of 70 percent for the period beginning May 2, 2008, and the portion that remanded the claim for a TDIU. In January 2016, the Court granted a JMR vacating the portion of the January 2015 decision that denied entitlement to a rating in excess of 30 percent prior to May 2, 2008. The Board notes that the agency of original jurisdiction (AOJ) has not yet completed development of the TDIU claim that was remanded in January 2015. Therefore, that issue is not currently before the Board. FINDING OF FACT Prior to May 2, 2008, the Veteran's agoraphobia was productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to May 2, 2008, the criteria for a rating of 50 percent but no higher for the Veteran's agoraphobia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A July 2006 VA letter satisfied the duty to notify provisions. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records, private treatment records, and VA treatment records have been obtained. 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 (SSA). 38 C.F.R. § 3.159(c)(2). A VA examination was conducted during the period on appeal in March 2007. The record does not reflect that the examination was inadequate for purposes of evaluating the severity of the Veteran's agoraphobia. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiner reviewed the claims folder or obtained a history from the Veteran and conducted an appropriate psychiatric evaluation of the Veteran, which provided the information necessary to rate the Veteran's claim under the rating criteria. The Veteran was also provided with a hearing related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal and inquired as to any outstanding evidence. The Veteran discussed his treatment history and symptoms during the appeal period, thus fully describing the nature and severity of his disabilities. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claims. Rating Criteria Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In determining the present level of a disability for an increased evaluation claim, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is necessary. When evaluating a mental disorder, the rating is to 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. The extent of social impairment must be considered, but a rating may not be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126. Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19. A 30 percent disability rating is assigned for a mental disorder when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9412. A 50 percent evaluation is warranted if the evidence establishes 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work or social relationships. Id. A 70 percent evaluation is warranted if the evidence establishes 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); or inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if the evidence establishes there is 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994). A GAF score ranging from 61 to 70 reflects the presence of some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulties in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally indicates one is functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51 to 60 is illustrative of 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). See Diagnostic and Statistical Manual of Mental Disorders, 46-47 (4th ed. 1994); 38 C.F.R. § 4.130. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, including in VA's electronic data storage system, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Facts and Analysis The Veteran contends that his agoraphobia symptoms merit a rating of 70 throughout the period on appeal. He places particular reliance on a private November 2014 examination finding that a 70 percent rating is appropriate for his disability from 2006 onward, which will be discussed in greater detail below. An August 2006 VA treatment note indicates that the Veteran's nightmares were becoming more vivid and frequent. The Veteran asserted that he was "fine" during the day as long as he avoided specific triggers, such as driving over a bridge, open spaces, or air travel. The Veteran was able to drive over a bridge with the aid of medication, but avoided air travel entirely. He described his relationship with his girlfriend as "okay." His mood was described as normal, and there was no indication of delusions or suicidal ideation. The treatment provider assigned the Veteran a GAF score of 65, indicative of mild symptoms. In January 2007, the Veteran reported that he continued to have anxiety and panic attacks triggered by driving on bridges, and asserted that other situations, such as driving fast on a motorcycle on the highway, also triggered panic attacks. He stated that he had settled into a satisfactory lifestyle with his girlfriend and pursued interests such as reading and caring for the household. His mood and affect were described as normal. He was not suicidal, and there was no indication of delusions or hallucinations. A VA examination was conducted in March 2007. The Veteran explained that he was required to take additional medication to manage his panic when he crosses the bridge to come to the VA Medical Center, and that at times he still has a panic attack when stuck in traffic on a bridge. He also indicated that after taking so much medication he was "not worth much" by the afternoon. The Veteran reported no suicidal attempts or ideation in the past or present. He stated that his sleep was satisfactory except for 2-3 nights weekly, when he was disturbed by nightmares related to service. His energy was decreased. The Veteran described his relationship with his family as satisfactory, explaining that he had a very good relationship with his brother. He reported having lunch with his brother 2-3 times per week, and speaking on the phone with him almost daily. He also stated that he had cared for his parents before their death. The Veteran had a girlfriend of four years with whom he spoke a couple of times daily, and often spent weekends with at either her or his home. He said that they never argued, and the relationship was satisfactory, although there were some problems in that he would not agree to go on overseas trips with his girlfriend because of the air travel required, and because he had no interest in sex, which she accepted. The report indicates that the Veteran considered these issues to be mild problems in the relationship. The Veteran asserted that he had lost a job due to absenteeism because he was unable to cross the bridge to go to work some days, and because he lacked motivation to do so because of his low opinion of some of the supervisors at work. He expressed that many jobs in his field would require travel over bridges or air travel, which would lead to difficulty controlling his panic attacks. He enjoyed driving along river roads, going out to eat or to the movies with his girlfriend, and helping his brother with chores and mechanical odd jobs. The Veteran explained that he experiences panic attacks when driving over bridges or taking airplanes, and when anticipating doing so. His worry was such that he restricted his travel and remained at home more than he liked. The examiner described the Veteran's mood as mildly anxious with congruent affect. There was no evidence of suicidal ideation. His thought process was logical and relevant, and there was no cognitive impairment or perceptual disturbances such as hallucinations or delusions. His memory was adequate, as were his concentration and attention. His judgment was within normal limits. The examiner described brief but quickly remitting periods of discord in the Veteran's intimate and family relationships, with more significant complications in the area of employment. The Veteran's symptoms were characterized as mild at the time of the exam, and he was assigned a GAF score of 63. A May 2007 VA treatment note indicated that the Veteran continued to have difficulty driving over bridges, but that he did not require medication in situations without a specific phobic trigger. The Veteran's mood was stable, although the Veteran's girlfriend had noted that he was less enthusiastic, energetic, and cheerful than usual. There was no suicidal ideation, and the Veteran was assigned a GAF score of 64. In November 2007, the Veteran's panic attacks had worsened such that they were occurring within the home when he should be otherwise relaxed. The Veteran's mood was abnormal with underlying anxiety. He was not suicidal. A December 2008 letter from the Veteran's treatment provider discussed the Veteran's condition over the previous year. The letter writer described fear and panic attacks associated with driving over bridges, which caused the Veteran significant hardship, distress, and impairment in work and social abilities. The letter writer asserted that the Veteran was assigned GAF scores ranging from 52-55 in the past year. The Board acknowledges that a November 2014 private examination asserted that the Veteran suffered from symptoms of feelings of social isolation, panic attacks, anxiety, insomnia, nightmares, suicidal ideation, depressed mood, hopelessness, and a variety of phobias including crossing bridges, heights, flying, and open spaces. The private examiner opined that many of the Veteran's symptoms dated back to the late seventies, and that a rating of 70 percent was appropriate as far back as 2006. The private examiner wrote that since 2006, the Veteran has become increasingly more socially isolative, avoidant, and hopeless. The private examiner also noted that the Veteran's mindset has become more defeatist as he does not even rely upon adaptive coping resources he previously utilized to help him effectively manage his anxiety and agoraphobia. He also discussed the adverse impact on the Veteran's ability to secure employment in that the Veteran was terminated from his last employment due to absenteeism on days when he was unable to cross the bridge to come to work, and asserted that the Veteran's agoraphobia precludes his ability to perform a job consistent with his training and background. He also noted that agoraphobic symptoms resulted in termination of a long-term relationship several years ago. The Board has considered this private opinion, but finds that it is less probative of the Veteran's condition prior to May 2, 2008 than the contemporaneous treatment records from that time. While the private examiner has reviewed the Veteran's past VA examinations, the Board does not find the assertion that the Veteran's symptoms warrant a 70 percent rating prior to May 2, 2008 to be supported by the treatment records during the period in question. The Board particularly notes that the private examiner found that many of the symptoms listed had persisted since the 1970s, but did not clarify which symptoms had such longevity. Review of the Veteran's contemporaneous medical records reveals that the more severe symptoms, particularly suicidal ideation, were not noted in the record during the period at issue in this decision. Moreover, the private examiner asserts that the Veteran's agoraphobic symptoms resulted in the termination of a long-term relationship several years ago as part of the evidence of historic social deficiency supporting his conclusion. Review of the record reveals that this relationship did not end until 2009. Specifically, a May 2009 treatment note indicates that the Veteran broke up with his girlfriend, and the June 2010 examination indicates that the relationship ended 18 months previously. Therefore, the dissolution of the relationship did not occur during the period on appeal. As the private examination opinion does not focus on the period prior to May 2, 2008, but rather relies at least in part on symptoms or events that occurred after the period in question to support its retrospective conclusions, the Board finds the probative value of the private opinion to be outweighed by the treatment records that focus specifically on the period on appeal. The most probative evidence of record demonstrates that prior to May 2, 2008, the Veteran's agoraphobia resulted in symptoms that were the functional equivalent of reduced reliability and productivity. The Board notes that even when the Veteran only experienced panic attacks when facing his phobias such as going over bridges or during air travel, the anxiety associated with these events was of sufficient severity that he was forced to significantly restrict his activities and movement. In particular, the Veteran's fear of crossing a bridge caused him to be absent from work with enough frequency that he was terminated. This termination directly links his panic attacks and fear of crossing bridges to significant reduced reliability. Additionally, the Board notes that in November 2007 the Veteran began experiencing panic attacks even when relaxed at home, which would necessarily reduce productivity even in situations where he is not confronted with his phobias. Based on the foregoing, the Board finds that prior to May 2, 2008, the Veteran's agoraphobia was productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity. Accordingly, the Board concludes that prior to May 2, 2008, the criteria for a rating of 50 percent for the Veteran's agoraphobia have been met. The Board does not find that the Veteran's symptoms during this period reached the point of deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. While the Veteran's difficulty crossing bridges has caused a deficiency in his ability to work, and his ongoing panic attacks and attendant anxiety caused some deficiency in his mood, the Veteran was not deficient in most areas. His judgment was found to be within normal limits in the March 2007 VA examination, and there has been no contradictory finding in the Veteran's treatment records during this period. The March 2007 VA examination also found that his thought process was logical and relevant without cognitive impairment or perceptual disturbances, and that his memory, concentration, and attention were all adequate. The VA treatment records from this time period are in keeping with this finding of appropriate thinking. Although the Board recognizes that the Veteran's romantic relationship faltered and ended in approximately 2009 at least in part due to the Veteran's psychiatric symptoms, the relationship was functional during the period on appeal. There were difficulties in the relationship, specifically the Veteran's inability to travel overseas with his girlfriend and his lack of interest in sex, but there is no indication that these difficulties rose to the level of making the relationship deficient. The March 2007 examination characterized these issues as mild problems, and the Veteran has consistently indicated in treatment records that his romantic relationship was satisfactory during the period on appeal. Additionally, the Veteran described a close relationship with his brother, who he spoke to nearly every day and had lunch with several times a week. The evidence does not support a finding that the Veteran's family relationships were deficient during the period on appeal. The most probative evidence of record shows that the Veteran's agoraphobic symptoms did not cause deficiencies in most areas of the Veteran's life. As such, a rating in excess of 50 percent is not warranted. Additional Considerations The above determinations are based upon consideration of applicable rating provisions. There is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. In this case, the schedular rating is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those symptoms are not present. The record does not reflect that the Veteran exhibits symptoms that are beyond the scope of the functional impairment contemplated by the rating schedule. Therefore, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability, and no extraschedular referral is required. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. 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. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, as noted in the introduction, the Veteran's TDIU claim was remanded by the Board in January 2015. This claim is still being developed by the agency of original jurisdiction (AOJ). As such, it is not ready for appellate review, and the Board must defer consideration of the issue. ORDER Entitlement to a rating of 50 percent, and no greater, for agoraphobia prior to May 2, 2008 is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs