Citation Nr: 1629909 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 13-10 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected anxiety disorder, not otherwise specified (NOS). ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to June 1971, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In March 2015, the Board remanded the initial rating claim and a service connection claim for bilateral hearing loss for additional development. Following development conducted pursuant to the Board's remand, the AOJ granted service connection for bilateral hearing loss in an August 2015 rating decision. As this issue has been granted, the issue is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). In regards to the higher rating claim for the Veteran's psychiatric disorder, VA treatment records have been obtained and he was afforded an additional VA examination in June 2015. The AOJ substantially complied with the Board's remand instructions and the Board can proceed to adjudicate the appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT After resolving reasonable doubt in favor of the Veteran, his service-connected anxiety disorder NOS was manifested by occupational and social impairment with reduced reliability and productivity throughout the entire appeal period due to such symptoms as depressed mood, chronic sleep impairment, nightmares, social isolation, panic attacks, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW Effective September 20, 2010, the criteria for a rating of 50 percent and no higher for service-connected anxiety disorder NOS have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130 (2015). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). Acquired psychiatric disorders are evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130 (2015). A 30 percent rating is warranted where there is an 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). Id. A 50 percent rating is warranted where there is an 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 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 that 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. 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), or an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF score between 21 and 30 indicates behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation). A GAF score between 31 and 40 indicates some impairment in reality testing or communication or major impairment in several areas. A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). Ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as 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). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Analysis In the instant case, a July 2012 rating decision granted service connection for an anxiety disorder NOS and assigned a 30 percent rating. His mental health treatment records also include a diagnosis of posttraumatic stress disorder. When it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As such, the reported symptoms of the Veteran's mental health conditions are for consideration in the evaluation of the service-connected psychiatric disability. Following a review of the evidence of record and after resolving reasonable doubt in favor of the Veteran, the Board finds that a rating of 50 percent is warranted for the entirety of the appeal period. It is the Veteran's contention that throughout the appeal period his psychiatric disorder has been more severe than the currently assigned rating and that he is entitled to a higher rating. He asserts that he jumps at the sound of loud noises, sits alone when he watches television, and has nightmares on a regular basis from which he wakes up sweating. He specifically contends that he has panic attacks several times per week and that he has a loss of interest in spending time with friends and engaging in previous hobbies. He also states that his psychiatric symptoms impact his occupational functioning as he has short term memory loss when he tries to complete a task, either at home or at work, and that he has disturbances in mood both at home and at work. Moreover, he asserts that he has had different jobs since leaving the military. See September 2010 claim, March 2011 statement, and August 2012 statement. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The medical evidence of record reveals that his psychiatric disorder has been described by his mental health treating professionals as ranging from mild to moderate. A July 2012 VA treatment record noted avoidance symptoms, restricted affect, emotional numbing, difficulty getting along with other individuals, hyperarousal, intrusive thoughts, concentration difficulties, anger outbursts, irritability, and persistent nightmares. His symptoms were described as ranging from mild to moderate and he was assigned a GAF score of 60. Treatments records from August 2012, September 2012, and November 2012 revealed similar symptoms, including intrusive thoughts, persistent nightmares, avoidance of interacting with other individuals and attending sporting events, hypervigilance and hyperarousal, emotional detachment, restricted affect, sleep disturbance, irritability, anger outbursts, and exaggerated startle response. It was also noted that the Veteran had "some" paranoid ideation. He was assigned a GAF score of 60. VA treatment records dated April 2013, May 2013, July 2013, and September 2013 also assigned the Veteran a GAF score of 60. These treatment records revealed similar symptoms, including anger outbursts, concentration difficulty, and nightmares. The treatment records also stated that his psychosocial stressors ranged from mild to moderate, partially due to having few friends and "some" social isolation. In a June 2013 self-report of symptoms, the Veteran reported a moderate level of difficulty concentrating. In October 2013, he was noted be socially isolated and was assigned a GAF score of 65. The Veteran was afforded VA examinations in November 2011, April 2014, and June 2015. Although the March 2015 remand stated that the April 2014 VA examination report was inadequate for rating purposes, the Board finds that when read together, the examination reports provide an adequate description of the Veteran's disability picture and the severity of his symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The November 2011 VA examination report included symptoms such as depressed mood, anxiety, chronic sleep impairment, and nightmares related to Vietnam approximately two to four times per week. The examiner described the Veteran's functional impairment as mild and assigned a GAF score of 65. The April 2014 VA examination report noted that the Veteran experiences mild memory loss, depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. The June 2015 VA examiner described the Veteran's hyperarousal symptoms and nightmares, as well as his poor insight. It was noted that the psychiatric symptoms cause mild to moderate impairment. The Board finds it significant that the VA examiners and the VA mental health treating professionals have described the Veteran's symptoms as at most moderate. Moreover, during the appeal period, the Veteran's GAF score ranged from 60 to 65, which also represents symptoms ranging from mild to moderate. Given the clinical findings that the Veteran has mild memory loss, panic attacks, chronic sleep impairment, hypervigilance and hyperarousal, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, persistent nightmares, and "some" social isolation, the Board finds that his psychiatric symptoms have resulted in social and occupational impairment with reduced reliability and productivity. After resolving reasonable doubt in favor of the Veteran, his disability picture, taken as a whole and in combination with the objective clinical evidence of record, have more nearly approximated the criteria of a 50 percent disability rating throughout the appeal. Although the November 2011 VA examination report described the Veteran's symptoms as mild, a 50 percent rating is appropriate for the entirety of the appeal period as the Veteran's competent and credible lay statements describe social isolation, persistent nightmares, loss of interest in activities, disturbances in mood, and short term memory loss throughout the appeal. See September 2010 claim, March 2011 statement, and August 2012 statement. Conversely, the Board finds that during the entire appeal period the Veteran's symptoms do not more nearly approximate a rating in excess of 50 percent as they are not of such severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, there is no evidence in the record of obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform ADLs (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran does not have a history of impaired impulse control, such as unprovoked periods of violence. Although the Veteran was found to have anger outbursts and irritability, it has not been shown that he has a violent history. See July 2012 VA treatment record. Moreover, even though "some" paranoid ideation was noted, the evidence does not reveal a history of gross impairment of thought process, delusions, or hallucinations. See April 2013 VA treatment record. Although the evidence reveals some difficulty in establishing and maintaining relationships, the evidence shows that he has a good relationship with his family members and that he engages in some hobbies. The loss of interest in social activities and difficulty maintaining social relationships is adequately considered by the currently assigned 50 percent rating. The Veteran contends that he has difficulty with short term memory loss when he tries to complete tasks. As the evidence does not reveal loss of memory for names of close relatives or occupation, the Veteran's symptoms of memory loss and concentration problems are also adequately considered by the 50 percent rating. The Board acknowledges the Veteran's July 2012 report of past thoughts of suicide. However, the evidence during the appeal period reveals that he has consistently denied suicidal ideations with a plan. See August 2013, September 2013, and October 2013 VA treatment records. The Board also acknowledges the lay statements that he has had different jobs since service and that he experienced mood disturbances and memory loss at work, as well as the April 2014 VA examination report which noted that he has difficulty adapting to stressful circumstances (including work or a worklike setting). However, the currently assigned 50 percent rating adequately considers any reduced reliability and productivity in occupational functioning. His disability picture as a whole does not reveal that he has experienced both social and occupational impairment to such severity so as to warrant a rating in excess of 50 percent. At no point during the appeal have the VA examiners or the mental health treating professionals described symptoms of such severity so as to warrant a rating in excess of 50 percent. On the contrary, the VA examiners and treating professionals described his symptoms as ranging from mild to moderate. Moreover, his GAF scores have ranged from 60 to 65, which reveal mild to moderate symptoms. He has not been assigned any GAF scores that would indicate more serious symptoms. Taking his history and all the evidence into account, the Board finds that the VA examination reports and medical evidence accurately describe the symptoms as at most moderate, and not severe, which is consistent with the currently assigned 50 percent disability rating. The evidence of record shows that the Veteran has additional symptomatology that is not enumerated in the rating criteria, such as persistent nightmares and hypervigilance. While these symptoms contribute to his social and occupational impairment, the evidence does not show that the impairment results in deficiencies in most areas or total impairment. Thus, a rating in excess of 50 percent is not warranted for these symptoms. In summary, the preponderance of the evidence is against a finding that the Veteran has occupational and social impairment resulting in deficiencies in most areas or in total occupational and social impairment. In reaching the conclusion that the Veteran's symptoms do not manifest to the degree required for a rating in excess of 50 percent, the Board has considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See Gilbert v. Derwinksi, 1 Vet. App. 49, 53-56 (1990). Furthermore, staged ratings are not warranted in the present case as the Veteran's symptoms at no point during the appeal period warrant a rating in excess of 50 percent. Although he is now retired, he has not alleged that he is unemployable due to his psychiatric disorder. As such, a claim for a total disability rating based on individual unemployability is not raised by the record. ORDER Effective September 20, 2010, a 50 percent rating and no higher for service-connected anxiety disorder NOS is granted, subject to the laws and regulations governing payment of VA monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs