Citation Nr: 1757718 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 05-01 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial increased rating in excess of 30 percent for panic disorder. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to June 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In a November 2016 rating decision, the RO denied the Veteran's total disability rating based on individual unemployability (TDIU) claim. Because the Veteran did not appeal this denial, and in light of the evidence documenting he is working full time and has completed an technical training certificate program (as noted in a January 2017 VA psychiatric examination report), the Board finds that a TDIU claim has not been raised by the record in the context of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Of note, in August 2011 the Veteran also testified regarding his psychiatric symptoms before another VLJ. However, the earlier testimony related to the Veteran's claim for service connection. Because the June 2016 hearing before the undersigned was the only hearing where testimony regarding a higher initial rating for panic disorder was taken, adjudication of this matter is not subject to a panel decision. Because the Veteran testified regarding increased rating hearing loss claim at both Board hearings, a three-VLJ panel separately adjudicated that issue and remanded it to the RO for additional, ongoing development. Accordingly, only entitlement to an increased rating for panic disorder will be addressed here. This case was previously before the Board in May 2017 and remanded for additional development. FINDING OF FACT The Veteran's psychiatric disorders have been manifested, at worst, by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for panic disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Because the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating. Neither the Veteran nor his representative has raised specific concerns with the duty to assist pertinent to this appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist). There also was the required compliance, certainly acceptable substantial compliance, with the Board's previous remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that "substantial" rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Panic disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran's panic disorder is currently as rated as 30 percent disabling for the entire period on appeal. A 30 percent evaluation is warranted for 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). Id. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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 evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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 list of symptoms in the General Formula is not intended to constitute an exhaustive list, but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The current rating criteria are based upon the American Psychiatric Association's DSM-5. While the DSM-5, which has now been adopted by VA and applies to this case because it was certified to the Board after August 4, 2014, did not incorporate the use of Global Assessment of Functioning (GAF) scores to identify levels of disability, discussion of such scores is appropriate for evaluations and treatment provided prior to VA's adoption of DSM-5. GAF scores reflect the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (DSM). A GAF score of 51 to 60 indicates the examinee has moderate symptoms or moderate difficulty in social, occupational, or school functioning. A GAF score of 61-70 indicates the examinee has some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning, but is generally functioning pretty well and some meaningful interpersonal relationships. A GAF score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). 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. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this 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). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claim. In his April 2010 VA neuropsychiatric examination, the Veteran denied suicidal or homicidal ideation. He reported anger management problems, and stated that he argued with his wife and had struck her. Moreover, the police were called after one such episode. He also reported depression, impaired sleep, decreased libido, and social isolation. In addition, he described anxiety and panic attacks triggered by driving. He denied symptoms of psychosis. His mental status examination was normal, and his GAF score was 75. VA treatment records from 2010 reflect the Veteran's reports of anxiety, panic attacks, depression, intrusive thoughts, avoidance, forgetfulness, and nightmares. His GAF scores ranged from 57 to 63. VA treatment records from 2011 describe the Veteran's exposure therapy treatment for panic disorder. His GAF scores ranged from 60 to 63. He reported that his panic symptoms triggered a fear of dying, but he denied suicidal ideation. During his August 2011 Board hearing (considered here as lay evidence but not subject to a panel decision because the issue then was service connection and not increased rating), the Veteran testified regarding symptoms of depression, anxiety, and nightmares. For example, he testified that his panic attacks had caused problems with required driving for work and with his family relationships because he could not easily travel. He denied suicidal or homicidal ideation. VA treatment records from 2012 reflect the Veteran's reports of anxiety and recurrent panic attacks. He denied hallucinations, delusions, and suicidal or homicidal ideation. His GAF scores were 63. Aside from a constricted and anxious affect, his mental status examinations were normal. VA treatment records from 2013 reflect the Veteran's reports of panic attacks, anxiety, and nightmares. His GAF scores ranged from 55 to 63. His mental status examinations were normal except for noted anxious affect. He denied suicidal or homicidal ideation. There were no noted or reported hallucinations or delusions. His clinicians described his memory as grossly intact. In an April 2013 written statement, the Veteran's supervisor noted that the Veteran's panic attacks affected his ability to drive for work and expressed wiliness to reasonably accommodate this symptom. In April, July, September, November, and December 2014 VA treatment records, the Veteran reported frequent panic attacks. He also reported depression, low energy, anxiety, irritability, and fighting with his wife. He denied suicidal or homicidal ideation. There was no psychosis. His mental status examinations, including memory, speech, and thought process evaluations, were normal. In an August 2014 VA treatment record, the Veteran reported suicidal ideation and distress associated a haunting image from his military service. The treating clinician discussed this incident with the Veteran, and the Veteran indicated that he was not a danger to himself or others. The clinician agreed and concluded that the Veteran could be safely treated as an outpatient. In a February 2015 written statement, the Veteran reported that his panic disorder had worsened and dramatically affected his marriage, personal life, and employment. For instance, he related his divorce to his severe depression, mood swings, nightmares, irritability, and threats of physical harm he made to his spouse. In that statement, he also explained how his anxiety attacks affects his ability to drive for work. He added that he had enrolled in a technical training program to find a job that does not require travel. VA treatment records from 2015 are significant for the Veteran's report of separation from his spouse and subsequent loneliness and depression. In addition, he described panic attacks and anxiety; however, he denied suicidal or homicidal ideation or intent to self-harm. His mental status examination was normal except for a slightly blunted affect. VA treatment records from 2016 are significant for the Veteran's report of continued panic attacks several times weekly, depression, insomnia, and anxiety. He reported living separately from his wife. His speech was normal, and his thought process was goal directed. He denied delusions, hallucinations, and suicidality. During his June 2016 Board hearing, he testified that he was seeing a psychiatrist and taking medication for depression, anxiety, panic attacks, and nightmares. Regarding depression and panic attacks, he testified that these symptoms occurred five or six times a week and caused problems at work. He also testified that his psychiatric symptoms led to his separation from his spouse, and that after this separation he felt worthless and had thoughts of self-harm. In his October 2016 Vet Center intake assessment, the Veteran reported panic attacks and anxiety, but he denied suicidality. On examination, his speech, memory, and orientation were normal. There was no evidence of hallucinations, delusions, or grossly disorganized behavior. His judgment was fair. The January 2017 VA examiner diagnosed the Veteran with panic disorder and adjustment disorder. Overall, the examiner reported that the Veteran's functioning was characterized by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational and social impairment only during periods of significant stress, or that his symptoms were controlled by medication. The examiner stated that adjustment disorder was generally separate from the service-connected panic disorder and related to the Veteran's reaction to his divorce; however, the examiner also stated that it was not possible to differentiate what portion of the occupational and social impairment noted was due to panic disorder versus adjustment disorder because these disorders reinforce and exacerbate each other in complex ways. The Veteran reported he was living alone and socially withdrawn after separating from his spouse of 33 years. He described a pretty good relationship with his three grown children. His support system included the Vet Center therapists and trusted friends. He was working full time for the state health department as an inspector since 2005. He reported problems at work due to conflicts with the owners of facilities he was inspecting, including a recent complaint by an owner to his supervisor. His panic disorder also affected his work because he experienced daily panic attacks during required driving. Notably, he had completed an air conditioning and refrigeration certification program, and he was planning to seek work in that field after retirement. The Veteran reported other symptoms including nightmares and intrusive thoughts. He sleeps 3-4 hours a day, although some sleep impairment was related to sleep apnea. He denied hallucinations, delusions, and suicidal or homicidal ideation. His mental status examination was largely normal except for impaired delayed recall of three words and inability to interpret proverbs. In a March 2017 summary letter, the Vet Center Director noted the Veteran's symptoms of anxiety, depression, and nightmares. His anxiety impacted his social interactions and ability to focus on goals when confronted with disappointments. Recently, the Veteran had reported using coping strategies such as exercise, therapy, and medication. Vet Center treatment records from 2017 are significant for the Veteran's reports of depression, insomnia, anxiety, panic attacks, guilt, and nightmares. He denied delusions or hallucinations. His mental status examinations were normal, except for noted depression. The March 2017 therapist suggested that the Veteran's divorce-related grief could be triggering his psychiatric symptoms including isolating. VA treatment records from 2017 are significant for the Veteran's report of worsening symptoms of anxiety and panic attacks over Memorial Day. He endorsed continued nightmares, anxiety, reduced appetite, fluctuating energy, and poor motivation. He was living alone, working for the state government, and going the gym three times a week. His mental status examinations were normal. In a September 2017 written statement, the Veteran reported that his panic disorder had worsened since the February 2013 rating decision. He described daily panic attacks, inability to drive far distances without anti-anxiety medications (which cause problems due to side effects), fear of flying, nightmares, and intrusive thoughts. These symptoms impact his work, which requires driving. They also impact his relationships with family and friends because he cannot easily travel to see them. Analysis After a careful review of the record, the Board finds that the evidence supports an initial increased rating of 70 percent for the Veteran's psychiatric disorder. The crux of the issue is the January 2017 VA examiner's finding that both the Veteran's panic disorder and adjustment disorder symptoms contribute to his impaired social and occupational functioning, and that these disorders reinforce and exacerbate each other. Accordingly, the Board will consider the totality of the Veteran's psychiatric disability picture in evaluating his disability rating. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Overall, his psychiatric symptoms of panic attacks, anxiety, irritability, and depression have caused occupational and social impairment with deficiencies in family relations, work, judgment, and mood. This is evidenced by his assault on his former spouse and the dissolution of his marriage. It is also evidenced by his panic attacks and irritability at work and related complaints to his supervisor. Moreover, his serious mood symptoms have impacted his family relations and social interactions including his relationship with his former spouse, adult children, and friends. The Board also notes the Veteran's August 2014 report of suicidality and June 2016 report of thoughts of self-harm as other factors supporting a 70 percent evaluation. A rating of 100 percent, the next level at which the Veteran could receive benefits, requires a showing of total occupational and social impairment. After thoroughly reviewing the evidence, as summarized above, the Board finds that a 100 percent rating for a psychiatric disorder is not warranted because there is simply not evidence suggesting the Veteran has been totally occupationally and socially impaired due to his psychiatric symptoms. Rather, the overwhelming majority of the evidence indicates that he consistently denied symptoms of a severity comparable to those listed as representing examples of the 100 percent disability rating. For example, he consistently denied suicidal or homicidal ideation except for the August 2014 report of suicidal ideation that was comprehensively evaluated by a treating clinician who determined that the Veteran was not at continued risk of self-harm. He also testified regarding transient thoughts of self-harm and worthlessness in the aftermath of his divorce during his June 2016 Board hearing. However, there is no evidence showing that he is in persistent danger of hurting himself or others. He repeatedly denied suicidal or homicidal ideation during his psychiatric treatment. He never reported (or was noted to have) hallucinations, delusions, or difficulty maintaining personal hygiene. He lives independently and manages his own finances. The record also shows he has held a full-time job since 2005. In addition, the January 2017 VA examination report's notation of impaired delayed recall and concentration and inability to interpret proverbs was not replicated on other examinations. Rather, the Veteran's mental status examinations including memory tests, described in detail above, were normal except for noted depression and anxiety. The record does reflect significant social impairment due to the Veteran's psychiatric symptoms. These symptoms, including angry and violent outbursts, depression, and anxiety have severely strained familial relationships. The evidence also reflects that that he has maintained some friendships and is in touch with his adult children. The record also evidences the serious impact the Veteran's psychiatric disorders have had on his occupational functioning. He reported panic attacks with required driving and irritability that resulted in complaints to his supervisor. However, the evidence also shows that he maintains full-time employment and completed an additional technical training course. The Veteran's GAF scores of record also do not support a 100 percent rating. They range from 55 (indicating moderate symptoms or impairment in social, occupational, or school functioning) to 75 indicating slight impairment). In summary, the Board finds that the Veteran's social and occupational impairment affects his ability to function appropriately and effectively, and thus, meets the criteria for a 70 percent rating. Regarding entitlement to rating in excess of 70 percent (a 100 percent rating), there is not any lay or medical evidence suggesting total social and occupational impairment. Thus, while he is significantly and seriously impaired by his psychiatric symptoms, the preponderance of the evidence is against finding that his impairment arises to the kind of gross impairment contemplated by a 100 percent rating. Consequently, an increased rating of 70 percent, but no higher, is warranted. ORDER Entitlement to an initial increased rating of 70 percent, but no higher, for PTSD is granted, subject to the monetary limits on financial awards. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs