Citation Nr: 1631634 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 16-00 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for undifferentiated somatoform disorder and chronic adjustment disorder with anxiety and depressed mood. 2. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected obstructive sleep apnea. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. 4. Entitlement to a total disability rating due to individual employability resulting from service-connected disability. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty with the Army from January 1990 to November 1998 and with the Army Reserve from May 1988 to October 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran was previously represented in this matter by the Disabled American Veterans (DAV). In July 2016, he submitted correspondence revoking his power of attorney from the DAV and requesting that his case proceed to the Board for a decision as soon as possible. The DAV responded the same day with a motion to remove itself as the Veteran's representative. The Veteran's request for a change in representation was received within 90 days from May 5, 2016, the date he was mailed notice his appeal was certified to the Board. See 38 C.F.R. § 20.1304 (a) (2015). The Board will therefore grant the motion to revoke the DAV's representation and proceed with a decision in this case. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for diabetes mellitus and erectile dysfunction and entitlement to TDIU are addressed in the Remand portion of the decision below. FINDING OF FACT The Veteran's undifferentiated somatoform disorder and chronic adjustment disorder is manifested by mild symptoms and occupational and social impairment, that results in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for undifferentiated somatoform disorder and chronic adjustment disorder, with anxiety and depressed mood, are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9423 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection for undifferentiated somatoform disorder and chronic adjustment disorder with anxiety and depressed mood was awarded in the April 2014 rating decision on appeal. An initial 30 percent evaluation was assigned effective January 23, 2013. The Veteran contends a rating in excess of 30 percent is warranted as his service-connected psychiatric disorder causes occupational and social impairment more severe than is contemplated by the current 30 percent disability evaluation. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2015). The Veteran's undifferentiated somatoform disorder and chronic adjustment disorder is currently rated as 30 percent disabling under Diagnostic Code 9423, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9423. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation 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. Id. The Board finds that the Veteran's service-connected psychiatric disorder manifests symptoms that are mild as described by the General Rating Formula for Rating Mental Disorders throughout the entire claims period and the criteria contemplated by the currently assigned 30 percent disability rating. The Veteran has complained of a depressed mood, anxiety, panic attacks weekly or less often, and some memory loss without impairment to conversation or activities of daily living due to psychiatric symptoms. The Board also finds that the severity, frequency, duration, and functional effect of the Veteran's service-connected psychiatric disorder is contemplated by a 30 percent rating. Throughout the entire claims period, the Veteran has reported symptoms and psychiatric impairment of greater severity than that demonstrated by objective testing and examination. In fact, the diagnoses of undifferentiated somatoform disorder and chronic adjustment disorder were first rendered by the November 2013 VA examiner based on the Veteran's complaints of anxiety and depression, associated with an exaggerated perception of his own physical ailments. The February 2015 VA examiner also found that the Veteran experienced disproportionate and persistent thoughts regarding the seriousness of his somatic symptoms and his high level of anxiety was a result of the excessive time and energy he devoted to them. The Veteran's preoccupation with his physical health was somewhat lessened at the May 2016 VA examination, when he was found to no longer meet the criteria for a mental health disorder, but psychiatric testing and evaluation indicated he over-reported and exaggerated his psychiatric symptoms. The May 2016 VA examiner concluded that the Veteran's reports were not credible with respect to the severity of his psychiatric impairment. The Board has considered the Veteran's statements regarding the nature and severity of his symptoms, but finds that the objective evidence of record is more probative regarding his true psychiatric impairment. The competent medical evidence establishes that the Veteran has not experienced more than mild impairment to social and occupational functioning due to his service-connected somatoform and adjustment disorder. He has remained consistently close to his family throughout the claims period, including his spouse, children from his previous marriage, and his parents. He is a member of a church, though his physical disabilities and chronic pain reportedly limit his ability to regularly attend. A May 2013 Social Security Administration (SSA) mental status evaluation notes that while the Veteran reported he was unable to get along with other people, the Veteran's mother indicated that this was not the case. The SSA psychologist further observed that social functioning did not appear to have been a problem in the Veteran's recent work environment. Three years later, during the May 2016 VA examination, the Veteran stated he had daily arguments with his wife, but the evidence clearly establishes that he has remained married throughout the claims period, lives with his wife and younger children, and has regular contact with most of his other family members. He has never demonstrated any problems with impulse control or aggression and until May 2016, never reported any problems with his family relationships. The Veteran is socially isolated to a certain extent, but based on his strong and positive family ties, the Board finds that his social impairment is no more than mild due to the service-connected psychiatric disorders. The Veteran's occupational functioning is also only mildly impaired due to psychiatric symptoms. He reports that he last worked full-time in January 2013 when he had to resign from his position as a pastor due to health problems. However, during the February 2015 VA examination, the Veteran stated that he hoped to resume full-time employment if accommodations were made for his anxiety and physical disabilities. He was also awarded a Master of Arts degree in Christian Ministry from Liberty University in May 2014 and was clearly able to attend classes and complete the required course work. He never mentioned his pursuit and subsequent award of a master's degree at any VA psychiatric examination; instead, the Veteran consistently reported that he was in receipt of an associate's degree but had no other education. As noted above, the November 2013 and February 2015 VA examiners both concluded that the Veteran's occupational impairment due to psychiatric symptoms were no more than mild. Although he reported during the February 2016 VA examination that he was unable to work due to stress and problems communicating, the Veteran and the examiner acknowledged that these problems did not present themselves during the examination. In sum, based on the complete evidence of record, the Board finds that the Veteran's occupational impairment due to his service-connected psychiatric condition is no more than mild in severity. The Veteran has demonstrated some of the symptoms associated with a 50 percent evaluation; specifically, difficulty understanding complex commands and impairment to short and long term memory. Review of the evidence clearly establishes, however, that these symptoms do not manifest to the severity contemplated by an increased rating as a result of the service-connected somatoform and adjustment disorders. Psychiatric testing performed at the Louisville VA Medical Center in February 2015 did not indicate any significant cognitive impairment. The Veteran was also described as highly functional by a November 2013 VA non-psychiatric examiner and was noted to have maintained a 4.0 grade point average in his master's degree program. The February 2015 VA examiner concluded that the Veteran was fully capable of managing his own funds and had no impairment in responding appropriately to coworkers, supervisors, and the general public. The examiner also identified only mild impairment to the Veteran's ability to understand and follow instructions with, at the most, moderate impairment to the ability to retain instructions, sustain concentration, and perform simple tasks. The Veteran demonstrated an impairment to mental status during the May 2013 SSA evaluation that was characterized as quite poor, but the examining psychologist observed that this seemed incongruous with the Veteran's education level and recent work history. Additionally, the SSA examiner identified other non-psychiatric factors potentially affecting the Veteran's mental status, including sleep apnea and side effects from several medications. In any event, the Veteran's presentation at the May 2013 SSA mental status examination is not consistent with the other evidence of record, which reflects only mild problems with memory and concentration. Moreover, the Veteran was able to obtain a Master's degree in May 2014, only one year after his May 2013 SSA mental status examination characterizing his mental status as poor. The Veteran has also reported occasional episodes of suicidal ideation during the claims period. The criteria pertaining to an increased 70 percent evaluation include suicidal ideation, as well as deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. However, the Veteran has consistently denied any plan or intent to harm himself and was judged a low-risk for suicide at the VA Medical Center (VAMC) in February 2015 due to various strong protective factors. Suicide screens performed throughout the claims period at the VAMC have also been consistently negative and the Veteran has only made intermittent reports of suicidal ideation. Additionally, it is clear that he does not experience deficiencies to work, school, family relations, judgment, or thinking that are of any similar severity to the symptoms and impairment contemplated by an increased 70 percent evaluation. In sum, the Veteran's service-connected undifferentiated somatoform disorder and chronic adjustment disorder is manifested by symptoms that are congruent with the currently assigned initial 30 percent evaluation. The Veteran has remained close to his family and was able to successfully complete a master's degree program during the claims period. The Board has also considered the Veteran's lay statements and reports of symptoms, but notes that the very nature of his service-connected disability contemplates an exaggerated and disproportionate perception of his physical and mental impairment. The Veteran's reports of symptoms are consistently at odds with the results of objective testing and examinations, and it is clear that the objective evidence is more probative than his lay statements. The Board therefore finds that the Veteran's service-connected psychiatric disorder is appropriately rated as 30 percent disabling throughout the claims period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable as the preponderance of the evidence is against the claim for an initial rating greater than 30 percent. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected psychiatric disorder is evaluated as a mental disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9423, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The Veteran's undifferentiated somatoform disorder and chronic adjustment disorder is manifested by mild symptoms and occupational and social impairment, that results in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 30 percent disability rating. Evaluations in excess of 30 percent are provided for certain manifestations of the Veteran's service-connected psychiatric disorder, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 30 percent rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.130, Diagnostic Code 9423; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for his service-connected psychiatric disorder, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 30 percent for undifferentiated somatoform disorder and chronic adjustment disorder, with anxiety and depressed mood, is denied. REMAND The Board finds that additional development is necessary before adjudicating the remaining claims on appeal. Specifically, a medical opinion is necessary to determine the nature and etiology of the claimed diabetes mellitus and erectile dysfunction. In January 2015, the claims file was forwarded to a VA physician for a medical opinion addressing whether the Veteran's diabetes and erectile dysfunction are related to service-connected sleep apnea. The VA physician was also asked to reconcile a conflict in the evidence between a November 2013 VA opinion and an April 2014 private medical opinion. Instead of providing the requested opinion, the January 2015 VA physician merely noted that the November 2013 VA opinion was more persuasive "for no other reason than the [private medical doctor's] letter contained no reasoning." The January 2015 VA physician also noted that the November 2013 VA examiner's opinion addressed both diabetes and erectile dysfunction, when in fact, the November 2013 opinion and rationale only focused on diabetes mellitus. Another medical opinion is therefore required to determine whether a relationship exists between the Veteran's diabetes, erectile dysfunction, and any service-connected disabilities. Regarding the claim for TDIU, the Board finds that it is inextricably intertwined with the claims for service connection and is therefore also remanded. Accordingly, the case is remanded for the following action: 1. The RO must attempt to obtain the Veteran's complete treatment records from the Louisville VAMC dated after June 2015, to include a March 11, 2016 primary care clinic note indicating that the Veteran is currently working as a realtor. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The claims file must be provided to a VA examiner for a medical opinion. Based on a complete review of the claims file, the examiner must state whether diabetes mellitus is caused or aggravated by service-connected obstructive sleep apnea. An examination of the Veteran should only be scheduled if the examiner providing the opinion deems such an examination is necessary. The examiner must discuss the November 2013 VA medical opinion and the April 2014 private medical opinion. In addition, the examiner must consider the referenced a University of Toronto study demonstrating a link between sleep apnea and diabetes. The examiner must also provide an opinion as to whether erectile dysfunction is caused or aggravated by service-connected obstructive sleep apnea and/or medications used to treat the Veteran's other service-connected conditions. The examiner must consider the Veteran's references to several scientific studies finding a high incidence of erectile dysfunction in patients with sleep apnea. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Once the above actions have been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs