Citation Nr: 1747876 Decision Date: 10/25/17 Archive Date: 11/01/17 DOCKET NO. 12-18 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating greater than 50 percent for service-connected anxiety disorder prior to January 2009. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran completed an honorable career in the U.S. Air Force, serving on active duty from May 1976 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a June 2016 decision, the Board, in pertinent part, granted a 50 percent rating, but no higher, for the Veteran's anxiety disorder prior to January 2009. In a September 2017 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMPR), and vacated the Board's decision to the extent it denied a rating higher than 50 percent prior to January 2009. The Court remanded the case for further action consistent with the terms of the joint motion. Specifically, the parties to the JMPR agreed that in denying a higher rating prior to January 2009, the Board did not adequately address the Veteran's statement in a January 2009 VA treatment record that she had increased the dosage of her psychiatric medication six months earlier due to increasing symptoms. The Veteran testified at a hearing before the undersigned in February 2016. A transcript is of record. FINDINGS OF FACT 1. Prior to September 2008, the Veteran's anxiety disorder did not more nearly approximate the criteria for a rating higher than 50 percent. 2. As of September 2008, the Veteran's anxiety disorder more nearly approximated the criteria for a 70 percent rating. CONCLUSION OF LAW The criteria for a 70 percent rating are satisfied as of September 2008 for anxiety disorder. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Law VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's anxiety disorder has been rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9400, which pertains to generalized anxiety disorder. Almost all mental health disorders, including anxiety disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, Under the General Rating Formula, a 10 percent disability rating requires: 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 30 percent disability rating requires: 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, or recent events). A 50 percent disability rating requires: 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 disability rating requires: 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 work-like setting; inability to establish and maintain effective relationships.) A 100 percent disability rating requires: 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 symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV and DSM-V). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. In evaluating psychiatric disorders, VA also considers a claimant's Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. II. Facts In July 2006, the Veteran was seen for an initial mental health assessment by the VA Mental Health Clinic. At this time, she reported "intense" emotions, with mood swings from sad to intense or angry with co-workers. She also reported mind racing which affected her concentration and caused errors in taking numbers on the telephone. Her energy level was good, although she did not sleep well. She bought things in a thrift store even when she did not need them and then gave them away. She would also engage in many activities at the same time or start different tasks at the same time, and could not stop. She reported chronic depression, isolation, and sadness, but never to the point of immobilization from depression. The Veteran was diagnosed with bipolar disorder, "provisional mixed," and assigned a GAF score of 49. She was prescribed new medication at this time. An August 2006 VA treatment record reflects that the Veteran felt much better with the new medication. She noticed moderation of her emotions. Her concentration was better. Her sleep was also improved. She still had a problem writing down information "from hearing," but there was slight improvement on her "intensity of task" or taking on many tasks at the same time. She also stated that her depression was better. Her anxiety was also "50% better." She further reported "resolution of urge to buy" things. A GAF score of 55 was assigned. An October 2006 VA treatment record reflects that the Veteran's mood swings had improved, but that she still had depression with crying spells, anxiety, sense of feeling hopeless and helpless, isolation, and poor motivation. Her energy level was better and she was sleeping well. A recent stressor was that there was a change of rating of her work performance with criticism from her supervisor that she took a longer time than other workers and "socialized too much." She was assigned a GAF score of 49. A December 2006 VA treatment record reflects that the Veteran's hypomania was under control, but that she still felt tearful, with crying spells at times, hopeless, not happy in life, anxious, and afraid of driving or being in crowds. However, she stayed active, had a good appetite, and slept well. A GAF score of 49 was assigned. A February 2007 VA treatment record reflects the Veteran's report that work was better and she felt more comfortable. She was doing better with a change in medication, but her depression was not in full remission. She still had a lot of anxiety. A GAF score of 49 was assigned. An April 2007 VA treatment record reflects that the Veteran stopped taking all psychiatric medications, and reported that her mind was racing, she was doing many activities at the same time, getting overfamiliar with people, and "intense." She was not spending and her sleep was better. She was assigned a GAF score of 49. A June 2007 VA treatment record reflects that the Veteran experienced improvement in racing thoughts, hyperactivity, and over-emotionality, but still felt depressed. She continued to work efficiently. Her concentration was also improved. A GAF score of 49 was assigned. An April 2008 VA treatment record reflects that the Veteran was able to function at work, and was "bright in the office, smiling." She slept well and had a good appetite. She had normal energy. She was more depressed during weekend. A GAF score of 49 was assigned. A September 2008 VA treatment record reflects that the Veteran had been referred for individual psychotherapy to address current symptoms of avoidance and sadness. She expressed her wish to work on "anxiety, depression, poor self-esteem, obsessive-compulsive behaviors." She stated that among her goals was to "learn to deal with stress, get out and try to socialize more, and take breaks and lunch at work." The Veteran reported that she had noticed her anxiety becoming more problematic after several years of medication treatment for depression. She reported that currently she would become overwhelmed at the workplace and sometimes experienced paralyzing anxiety. She enjoyed needle crafts, soap operas, playing with her cats, going to movies and dinner alone or with friends, but lately felt more isolated and hesitate to go out. On examination, no abnormalities were noted except for an anxious/depressed mood. It was also noted that the Veteran verbalized a high degree of idealized thinking (black and white, all good or all bad), but the clinical significance of this finding was not discussed. No abnormalities with regard to thought process or content were noted. Her cognition appeared intact and her insight and judgment were fair. A GAF score of 55 was assigned. Another September 2008 VA treatment record reflects that the Veteran reported feeling the most distress when leaving work and heading home to be alone. She expressed anxiety about being around people, but also did not like being alone. An October 2008 VA treatment record reflects that doing "exposure therapy" exercises prescribed by her treating psychologist in which she confronted sources of psychological stress, including traumatic memories, both in her imagination and also "in vivo," she felt emotional distress which interfered with her ability to work. A November 2008 VA treatment record reflects the Veteran's report that the exposure therapy exercises made her depression much worse. On examination, no new abnormalities or issues were noted with regard to speech, thought production and content, concentration, memory, judgment, insight, or cognition. However, her mood was depressed and her affect was "tearful/sobbing." A January 2009 VA treatment record reflects that the Veteran was seen for medication management by her psychiatrist. At this time, she reported that her best friend had passed away, and she was going through bereavement, feeling sad and crying. There was no change of sleep or appetite. She reported seeing a psychologist on a few occasions and that initially she was very emotional but then reached a point where both the Veteran and the psychologist thought she was making progress. She reported that medication helped her depression and mood lability, and improved her confidence, and ability to perform tasks at work. However, she had to increase the daily dosage for the past six months due to worsening symptoms prior to increasing the dosage. She still had racing thoughts and a tendency to take on many tasks at the same time, particularly at work, along with other symptoms. The psychiatrist's assessment was that the Veteran had experienced a "small relapse of bipolar symptoms," but had some improvement when the dosage of her medications was increased. A GAF score of 49 was assigned. III. Analysis Resolving reasonable doubt, the Board finds that the criteria for a 70 percent rating were satisfied as of September 2008, based on the VA treatment records dated that month reflecting that the Veteran's anxiety was becoming more problematic after several years of medication treatment for depression. At that time, she reported that she would become overwhelmed at the workplace and sometimes experienced paralyzing anxiety. The VA treatment records dated in October 2008 and November 2008 support this finding. They show that she reported emotional distress which interfered with her ability to work since commencing exposure therapy, and that the therapy exercises made her depression much worse. The January 2009 VA treatment record, in which the Veteran reported increasing her psychiatric medication several months earlier due to increasing symptoms, reinforces the finding that the Veteran's psychiatric disorder increased in severity in September 2008. In its June 2016 decision, the Board explained its reasons for assigning a 70 percent rating, but no higher, effective January 2009. Those reasons are incorporated herein by reference, and apply to the period beginning September 2008. The January 2009 VA treatment record reflects that the Veteran reported increasing the dosage of her psychiatric medication six months earlier due to an increase in symptoms. While the September 2008 VA treatment record is dated less than six months prior to January 2009, the Board finds that a rating higher than 50 percent is not warranted prior to September 2008, for the reasons that follow. Prior to September 2008, the preponderance of the evidence shows that the criteria for a rating of 70 percent or higher were not more nearly approximated. On examination, the Veteran's speech, appearance, orientation, thought process and content, judgment, and insight were generally evaluated as normal or no abnormalities were noted. Although she had ongoing depression and anxiety, she was able to work and manage her own household. The evidence does not indicate that she had near-continuous depression or anxiety affecting the ability to function independently, appropriately and effectively. Her going to thrift stores and buying things she did not need might show some impairment of impulse control, but not equivalent in severity to unprovoked irritability with periods of violence or similar severity. Moreover, the evidence does not show that this practice actually affected her occupational functioning. Similarly, her interpersonal difficulties at work, including due to boundary issues in her interactions with co-workers, "intense" emotions including anger, and mood swings, did not amount to difficulty adapting to stressful circumstances as contemplated in the criteria for a 70 percent rating, as she did not have significant missed time from work or other significant interference with occupational functioning, let alone an "inability" to establish and maintain effective work relationships. See id. Thus, her symptoms and functional impairment were not equivalent in severity to the criteria for a 70 percent rating. The Board has also considered the Veteran's statements regarding the severity of her symptoms in the June 2010 notice of disagreement, June 2012 VA Form 9, and at the February 2016 Board hearing. To the extent the Veteran was asserting that the symptoms she described in these statements were present from July 2006 through September 2008, the Board accords more evidentiary weight to the contemporaneous medical records with respect to what they show in terms of reported symptoms and examination findings than to the Veteran's statements made years later in support of a claim for benefits. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The GAF scores of 49, which denote serious symptoms or functional impairment, do not in themselves show that the criteria for a 70 percent rating or higher were satisfied prior to September 2008. The Board finds the VA treatment records and examination reports prior to September 2008 constitute probative evidence weighing against a rating higher than 50 percent, for the reasons explained above. In light of the above, although the Veteran reported self-increasing the dosage of her medication six months earlier in the January 2009 VA treatment record, the Board accords more weight to the VA treatment records showing that the Veteran's symptoms and functional impairment through August 2008 did not more nearly approximate the criteria for a 70 percent rating or higher, for the reasons discussed above. While there were fluctuations in the severity of the Veteran's symptoms prior to September 2008, the sole fact that the Veteran at times reported increasing symptoms prior to September 2008 does not show that her anxiety disorder met the criteria for a 70 percent rating during that period. The Board finds that the preponderance of the evidence weighs against a rating higher than 50 percent prior to September 2008. Consequently, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A rating of 70 percent, but no higher, is granted effective September 2008 for anxiety disorder, subject to the law governing payment of monetary benefits. A rating higher than 50 percent prior to September 2008 for anxiety disorder is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs