Citation Nr: 1751433 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-58 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial rating in excess of 30 percent for other unspecified anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from February 1957 to October 1966. The current matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's service-connected psychiatric disability causes no more than 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. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for other unspecified anxiety disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9413 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, VA examination reports, and the Veteran's written assertions. Moreover, the Board has reviewed the Veteran's Virtual VA (VVA) claims file and Veterans Benefits Management System (VBMS) file. Next, the Veteran was afforded VA examinations for his psychiatric disability in March 2016 and July 2017. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the VA examinations are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2016); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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 (2016). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). The Veteran is currently assigned a 30 percent rating for his service-connected other unspecified anxiety disorder. 38 C.F.R. § 4.130, Diagnostic Code 9413 (2016). A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9413 (2016). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2014). The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Although certain symptoms must be present in order to establish the diagnosis of an unspecified anxiety disorder, it is not the symptoms but their effects that determines the level of impairment. Id. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130 (2016). The Board notes that, effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5). In pertinent part, the DSM-5 eliminated the Global Assessment of Functioning (GAF) scores used in the DSM-IV. As such, the Board's analysis will not consider these criteria. At a March 2016 VA examination, the VA examiner stated that a mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran reported that he has no good friends but a lot of acquaintances. He reported that he volunteers at a food shelf two days a week and three days a week driving veterans and senior citizens to medical appointments. He reported that he was on medication for his psychiatric disability and it "helps a lot." The VA examiner noted that the symptoms that apply to the Veteran's diagnosis include anxiety and chronic sleep impairment. The Veteran was noted to be alert and oriented, and his grooming and dress were appropriate. The VA examiner described the Veteran as friendly and cooperative, with good social skills and fair insight. His speech and thought content were described as unremarkable. The Veteran denied clinical symptoms of depression, obsessive symptoms, compulsive symptoms and panic attacks. He additionally denied suicidal and homicidal ideations and psychosis. The Veteran was given the MMP12-RF test and the examiner determined that the profile was invalid due to a non-credible pattern of responding consistent with individuals who intentionally exaggerate or malinger symptoms. The Veteran underwent an additional VA examination in July 2017. The VA examiner described the Veteran's level of occupational and social impairment as having 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. The Veteran reported having communication problems with his wife of 50 years. He reported not speaking to one of his children for a number of years and having adequate but distant relationships with his other two children. He reported that he volunteers at a local food shelf two days a week and also volunteers driving veterans to appointments. He stated that it keeps him occupied; he meets people, and keeps his mind busy. The Veteran reported that when he is not doing something he will get really down but he is able to work out of feeling down and depressed. The Veteran reported going to a provider at the VA for mental health treatment and that he was currently on medication for his psychiatric disability. The VA examiner noted that the symptoms that apply to the Veteran's diagnosis include anxiety, chronic sleep impairment, and mild memory loss such as forgetting names, directions, or recent events. The VA examiner described the Veteran as alert and oriented, adequately groomed and neatly dressed. His eye contact was appropriate, his speech was described as of normal rate and volume and his responses were logical, coherent and relevant to the questions asked. He reported that he can be easily irritated by others. The Veteran stated that he has trouble staying asleep and that his appetite has been adequate. He reported that his memory had become more of an issue and he has to write things down so that he can remember what to do. He denied suicidal ideation, but reported having a general feeling of anxiety often. VA treatment records have been reviewed. Treatment records, during the time period on appeal (since September 29, 2015), reflect no suicidal ideation or homicidal ideation. They additionally reflect intact insight and judgment. The Board finds, after a careful review of all pertinent evidence in light of the rating criteria, that the Veteran's other unspecified anxiety disorder symptomatology continues to meet or more nearly approximate the severity of occupational and social impairment contemplated for the 30 percent rating assigned under the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9413 for the entire period on appeal. 38 C.F.R. § 4.7 (2016). At no point during this appeal did the Veteran's other unspecified anxiety disorder symptomatology meet the criteria for a rating in excess of 30 percent. A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to certain symptoms. However, the Board finds that those delineated symptoms are not characteristic of the type and severity of symptoms the Veteran experiences due to his other unspecified anxiety disorder. Evidence of record does not indicate that the Veteran has exhibited 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 caused by his psychiatric disability; impaired judgment; or impaired abstract thinking. These symptoms were not noted on either of his VA examinations or in his VA treatment records. While the Veteran has documented symptoms of depressed mood, and is not currently employed (retired), the July 2017 VA examiner described the Veteran as exhibiting symptomatology of a level of severity to cause 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 (characteristics of a 30 percent rating). The Board concurs with the July 2017 VA examiner's findings that the Veteran's other unspecified anxiety disorder signs and symptoms more nearly approximate occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In fact, during the appeal period, evidence of record shows that the Veteran maintained some sort of relationship with some his children, his wife and people he meets through volunteering. Additionally, mental status findings showed clear speech, normal thought processes, and intact judgment and insight. Consequently, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for other unspecified anxiety disorder during the appeal period. The Veteran also submitted written statements, through his representative, discussing the severity of his service-connected other unspecified anxiety disorder. In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact. Credibility and weight are a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran is competent to report symptoms of his other unspecified anxiety disorder because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his other unspecified anxiety disorder when applied to appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's other unspecified anxiety disorder-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which his disability is rated. The Board finds that the Veteran's claim for a rating in excess of 30 percent for other unspecified anxiety disorder must be denied. The Board has considered staged ratings, but concludes that they are not warranted because the evidence does not show any period of time when the symptomatology has been sufficiently more severe to warrant a higher rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Because the preponderance of the evidence is against this claim, the claim for increase must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Finally, although the Veteran has submitted evidence of a medical disability, and made claims for the highest rating possible for his acquired psychiatric disability, he has not submitted evidence of unemployability because of his acquired psychiatric disability, or claimed to be unemployable because of his acquired psychiatric disability. The Board has not ignored the fact that the Veteran is currently not working. The Veteran reported at his March 2016 VA examination that he had been retired and now volunteered several times a week. The record does not suggest that the Veteran cannot work because of his service-connected other unspecified anxiety disorder or that this issue has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An initial rating in excess of 30 percent for other unspecified anxiety disorder is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs