Citation Nr: 1630081 Decision Date: 07/27/16 Archive Date: 08/04/16 DOCKET NO. 13-09 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for myelofibrosis, including as a result of herbicide exposure. 2. Entitlement to an initial rating in excess of 30 percent for an anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant (the Veteran) and his spouse ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1969 to May 1971. This case comes to the Board of Veterans' Appeals (Board) on appeal of July and August 2011 rating decisions of the Indianapolis, Indiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2014, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The issues were remanded by the Board in June 2015 for further development of the evidence. That has been partially accomplished and the case has been returned for further appellate consideration. 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) (West 2014). The issue of service connection for myelofibrosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDING OF FACT Throughout the appeal, the Veteran's service-connected anxiety disorder, not otherwise specified (NOS), has been manifested by irritability, anxiety, depression, flashbacks and sleep disturbances with nightmares and difficulty getting to sleep. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for an anxiety disorder have not been met for any period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code (Code) 9400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by a letter dated in August 2010. 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). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded a VA medical examination, most recently in September 2015. The Board finds that the opinions obtained are adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2015). Increased Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). In this case, the Board has considered the entire period of initial rating claim from the effective date of the award in July 2010 to see if the evidence warrants the assignment of different ratings for different periods of time during the claim, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Anxiety Disorder Service connection for an anxiety disorder was granted by the RO in a July 2011 rating decision. The 30 percent initial disability rating was awarded under the provisions of Code 9400 from the date of claim in July 2010. The Veteran contends that his anxiety disorder is more disabling than currently evaluated. At his Board hearing in 2014, the Veteran and his spouse testified that he had significant difficulty with sleep, that he had trouble with loud noises, and that he could not sit with his back to the door. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, a 10 percent rating. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. 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. 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, a 70 percent rating. 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, a 100 percent rating. 38 C.F.R. § 4.130. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Global Assessment of Functioning (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). A score of 21-30 reflects that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A score of 31-40 is assigned where there is "[s]ome 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)." DIAGNOSTIC AND STASTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious 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)." A score of 51-60 is appropriate where there are "[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." Scores ranging from 61-70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). Id. A private psychiatric evaluation was conducted in June 2010. At that time, the Veteran complained of feeling edgy and not being able to stand going anywhere. He was "jumpy" with fireworks and stated that he had dreams of Vietnam, flashbacks and nightmares. He reported being easy to anger and of night sweats. He denied suicidal or homicidal ideation. The diagnosis was posttraumatic stress disorder (PTSD). An examination was conducted by VA in August 2010. At that time, the Veteran had complaints of ongoing irritability and jumpiness. He stated that he could not stand to have his back to a door and became nervous. This had worsened in the past few years. He stated that he still enjoyed being around other people. He described his mood as depressed at times, but not causing considerable impairment. He endorsed racing thoughts at times, when he could not sleep. On examination the Veteran was neatly groomed and appropriately dressed. Speech was unremarkable and there was no psychomotor activity. Affect was normal and the Veteran was oriented to person, time, and place. Thought process and content was unremarkable. There were no delusions. Judgement and insight were intact. He described sleep impairment, noting that he had nightmares about Vietnam and had attacked his wife in his sleep. He had no complaints of obsessive or ritualistic behavior, panic attacks, homicidal or suicidal thoughts. Impulse control was good. Memory was normal. The diagnosis was anxiety disorder. His GAF score was 64. The examiner commented that the Veteran had occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms, but with generally satisfactory functioning. These included irritability at work over the years and experiences of distress when he heard helicopters and other reminders of Vietnam. VA outpatient treatment records include a June 2012 report when the Veteran was seen to obtain his medications. Regarding his psychiatric symptoms, it was noted that his medications has recently been changed and that he woke up "feeling like a zombie." Despite the medications he continued to have symptoms of jitteriness and nightmares. In July 2012, he was noted to be primarily concerned with issues of anxiety, depression, and perseverative memories and thoughts about his time in Vietnam. He presented in affect and demeanor as chronically dysthymic. He denied having thoughts of harming himself or others, but talked of chronic irritability and difficulty getting along with others. His reports and demeanor seemed contradictory at times, in that he stated that he had difficulty with people, but talked about his work in the church, visiting shut-ins and counseling others. He reported a long stable history of employment and that he had been married for 40 years. He had no psychosis. The diagnoses were generalized anxiety disorder, and major depressive disorder vs. dysthymic disorder. His GAF score was 60. In October 2012, it was noted that he was not suicidal or homicidal and had no actual or imminent clinical indication of increased risk of self-directed violence. Mental status evaluation at that time showed him to be calm, casual, clean, but slightly guarded. He was alert, oriented, organized and cooperative. His mood was "so-so" and congruent with a constricted but basically vital affect. Thoughts were logical, but somewhat circumstantial and were associated with practical goals. There was no evidence of psychosis or self-destructive ideation. Cognition was sharp and concentration was good. When last seen, in August 2015, the diagnosis was PTSD, with disturbed sleep and irritability. On mental status evaluation, the Veteran was calm, clean, casual, alert, affable, organized, oriented and cooperative. He stated that he continued to struggle with life and now had more dreams. Mood was consistent with a constricted and poorly modulated affect. Thoughts were logical, goal oriented, and free of psychotic process or content. He denied self-destructive ideation, but admitted to gloomy thoughts. Cognition was intact with good judgment and insight. There was no perceived risk of suicide. An examination was conducted by VA in September 2015. At that time, the diagnosis was PTSD. The examiner described the Veteran's impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. After describing the Veteran's PTSD diagnostic criteria, the examiner noted current mental status as being casually dressed and neat in appearance. The Veteran maintained eye contact, but appeared angry through most of the examination. His attitude was annoyed, but speech was coherent, fluent, and talkative. Mood was mildly irritable with this decreasing somewhat over the course of the examination. Affect was congruent. The Veteran denied hallucinations. Thought process was logical and goal directed. There were no complaints of delusions or paranoia. There was no current suicidal ideation, but the Veteran did note passive thoughts of death over the past year. There was no homicidal ideation. The Veteran was well oriented and memory was intact. Judgment and insight were fair to good. The Veteran reported nightmares two to three times per month. He and his wife slept apart because he was "so restless." He did report that he had "attacked" her at times. He had startle response to loud noises such as firecrackers. Throughout the appeal, the Veteran's psychiatric disability, which has been diagnosed as both an anxiety disorder and PTSD, has been manifested by irritability, anxiety, depression, flashbacks and sleep disturbances with nightmares and difficulty getting to sleep. While these symptoms clearly meet the criteria for a 30 percent rating, at no time during the appeal has the Veteran manifested symptoms that demonstrate occupational and social impairment with reduced reliability and productivity. In this regard, such symptoms such as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships have not been demonstrated at any time during the appeal. Nor have the symptoms demonstrated by the Veteran approximated occupational and social impairment with reduced reliability and productivity or a greater level of impairment. Further, a 30 percent evaluation is consistent with the GAF scores assigned 64 and 60. These scores contemplate mild to moderate impairment. As such, there is no indication that a rating in excess of 30 percent has been warranted at any time. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased rating for an anxiety disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has considered whether an extraschedular evaluation should be assigned to the Veteran's anxiety disorder. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's psychiatric disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9400, specifically provides for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's disability has manifested difficulty sleeping, anxiety, irritability, flashbacks, and depression. These symptoms are part of the schedular rating criteria. In addition, the level of occupational and social impairment are explicitly part of the schedular rating criteria. Also, the GAF scores which were included as part of the diagnostic process prior to the most recent evaluation tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning that is contemplated in the rating schedule. As such, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's anxiety disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial rating in excess of 30 percent for anxiety disorder, NOS, is denied. REMAND The Veteran also claims service connection for myelofibrosis that he contends should be considered a form of leukemia that may be presumed as service connected as a result of herbicide exposure. In June 2015, the Board remanded this issue so that an opinion could be obtained regarding whether it is at least as likely as not that the Veteran's myelofibrosis may be classified as a chronic B-cell leukemia including chronic lymphocytic leukemia or hairy cell leukemia, and, thus be related to herbicide exposure in service. The Veteran was examined by VA in September 2015 when the examiner, a nurse practitioner, first indicated that the myelofibrosis was not classified as a B-cell or hairy cell leukemia, but was a chronic leukemia. The examiner did not indicate whether myelofibrosis should be considered a chronic lymphocytic leukemia. The examiner then further opined that it was at least as likely as not, based on the opinions of the Veteran's various private doctors, that the myelofibrosis was incurred in or caused by service. In an additional September 2015 memorandum, the VA Chief of Medical Oncology stated that it was "possible that exposure to Agent Orange may be involved in this case, but there is limited/insufficient evidence to support a direct link." After citing two Board decisions, one granting service connection and one denying, it was stated that this claim would likely need to be reviewed based on previous precedent. The Board notes that its decisions do not set precedent and have no bearing on the current appeal. Therefore, in view of the conflicting opinions, the case must be returned. Cousino v. Derwinski, 1 Vet. App. 536 (1991) (where there is a wide diversity of medical opinion, an additional examination should be performed). In addition, the Veteran's representative has pointed out that the Veteran's in-service duties likely exposed him to benzine, which may be linked to the development of myelofibrosis. A medical opinion regarding this contention should be undertaken prior to further appellate consideration. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should arrange for the Veteran's claims file to be reviewed by a specialist in oncology to ascertain the current nature and etiology of his myelofibrosis. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that the Veteran's myelofibrosis may be classified as a chronic B-cell leukemia including chronic lymphocytic leukemia or hairy cell leukemia, and, thus, be related to herbicide exposure in service. If not, the examiner should opine as to whether it is at least as likely as not (probability 50 percent or more) that the Veteran's myelofibrosis is of service onset or otherwise related thereto, including exposure to chemicals such as benzine in service. The examiner should provide complete rationale for all conclusions reached. 2. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs