Citation Nr: 1801518 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-17 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 30 percent for an anxiety disorder not otherwise specified REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Natasha N. Pendleton, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy with a period of active duty service from January 1970 to December 1971. This matter comes before the Board of Veterans 'Appeals (Board) on appeal from a rating decision issued in July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida, which granted service connection for the Veteran's anxiety disorder (also claimed as post-traumatic stress disorder) disability and assigned an initial rating of 30 percent, effective March 6, 2009. Thereafter, he appealed with respect to the propriety of the initially assigned rating for such disability. In April 2016, the Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in the Regional Office in Saint Petersburg, Florida. A transcript of the hearing has been associated with the claims file. The record was held open briefly post-hearing to grant the Veteran an opportunity to supplement the record. The Veteran subsequently submitted additional evidence in the form of VA treatment records. He waived review of the evidence by the RO. See 38 C.F.R. § 20.1304(c) (2017) (May 2016 Third Party Correspondence). The matter now properly returns to the Board for adjudication. FINDING OF FACT The preponderance of the evidence shows the Veteran's anxiety disorder manifested 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 symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). CONCLUSION OF LAW The criteria for an initial rating in excess 30 percent, for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, DC 9413 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initial rating assigned, consideration must be given to the evidence since the effective date of the claim as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). As the facts of the case fail to show distinct periods where the service-connected disability exhibited symptoms that would warrant different ratings, the Board finds that a staged rating is not appropriate in this circumstance. Id. In this case, the Veteran's anxiety disorder is rated under Diagnostic Code (DC) 9413. Currently, he is assigned a 30 percent rating effective March 6, 2009. DC 9413 is part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under this formula, a 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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 activities; speech that is 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); and inability to establish and maintain effective relationships. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "the DSM-IV"). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflects moderate symptoms, such as flat affect and circumstantial speech, occasional panic attacks, or moderate difficulty in social or occupational functioning (e.g., few friends or conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious 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). Scores ranging from 31 to 40 reflect some 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). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." VA determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45, 093-45,094 (Aug. 4, 2014). The RO certified the Veteran's appeal to the Board in December 2015. Hence, the DSM-5 is the governing directive. The DSM-5 introduction states that it was recommended that the GAF be dropped for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. Therefore, GAF scores will not be discussed at length; only where consistent with the functional lost. Turning to the evidence of record, the Veteran underwent a psychiatry assessment in March 2009. Id. at 7. On examination, his thought content appeared to be paranoid as he reported feeling that he was being followed and that his telephone was being taped. Id. at 9. He believed all government agencies were after him and admitted that he had not paid taxes in nine years. Id. He had little eye contact and displayed having an anxious mood. Id. While he attested to having a long history of suicidal ideation, he stated he believed he would not act on it. Id. he reported that he was forgetful at times. Id. at 10. He has a history of three DUIs, with his last charge occurring in 2007. He was diagnosed as having depression with psychotic features and alcohol dependence. The examiner assigned the Veteran a GAF score of 40. Id. May 2012 VA records indicate that his treatment primarily consisted of ongoing visits to refill prescribed medication in July 2009, September 2009, and January 2010 onward. (Legacy Documents- CAPRI pg. 3, 6, 7, 8, 9, 13). However, it appears that his condition has remained unchanged; if not improved with medication management and therapy. The Veteran was afforded a VA examination in October 2009. He reported that he manages his mental health impairment by individual psychotherapy and prescribed medications, vistaril, trazadone and Wellbutrin. On examination, his general appearance was normal. His psychomotor activity manifested in hand wringing and restlessness; however, his speech and attitude were unremarkable. He had a full affect. His attention was intact. He was oriented to person, time and place. His thought process and content was unremarkable. He displayed no delusions and his judgment indicated he was capable of understanding outcome of behavior. His remote, recent and immediate memory was normal. He was of normal intelligence, but did report having sleep disturbance; sleeping six hours per night. At the time he reported having no panic attacks. While he reported to having a history of suicidal thoughts, he had none at the present time. (See MTR (3) pg. 23). He was assigned GAF score of 70; indicative to "mild symptoms." Id. at 12. Most importantly, the examiner opined that the Veteran's mental disorder symptoms were not severe enough to interfere with his occupational and social functioning. The examiner noted that the Veteran attributed his unemployment primarily due to a post-service hand injury as well as a prior arrest for attempting to perform unlicensed contractor work. Likewise, most recent VA records from May 2016 VA echo similar symptoms. On examination, he displayed a restricted affect and anxious and depressed mood; but not labile or inappropriate. (See May 2016 Third Party Correspondence pg. 9; see also MTR (1) at 11, 23; MTR (2) at 24). He has paranoia, flashbacks and nightmares. (See MTR (3)(1). He also was hypervigilant. Id. His judgment and insight were fair and uses normal eye contact with normal motor activity. Id.; see also MTR (1) at pg. 11 and 19; MTR (2) at pg. 3, 24; MTR (5) at pg. 1, 3). His interpersonal skills were cooperative. (See MTR (2) at pg. 3; MTR (5) pg. 1). While his attention is distractible at times, his thought process and concentration remain normal. (See Third Party Correspondence pg. 9; see also MTR (3) pg. 1, 8, 21)). Throughout 2016, his GAF scores have remained in the 50s; reflecting moderate symptoms. (See MTR (1) at 9, 10, 12, 23; MTR (2) at pg. 3, 4, 8, 16, 24; MTR (3) at pg. 8, 16; MTR (4) 4, 8, 16, 24; MTR (5) at pg. 9, 10, 12, 23). His Generalized Anxiety Disorder 7-item scale (GAD-7) score was an 8; a low score is indicative of the absence of anxiety. The Board also considered the Veteran's lay statements, both oral and written. Several of his statements concerning the frequency and severity of his symptoms are inconsistent. For instance, during the April 2016 Travel Board Hearing, he testified that he experiences panic attacks approximately six times per month. Yet, during the October 2009 VA examination, he denied experiencing any panic attacks. In terms of his social functioning, while he testified to having difficulties with anger management and panic attacks during the time of the dissolution of his marriage; he also testified that he has had a romantic partner for the past 14 years. He also reported having difficulties at time with his romantic partner's teenaged child on occasion and "blew up" on a friend. Yet, he testified that he maintains a small group of friends. As regards his memory, he also reported having trouble with memory, such as forgetting names. Most recent treatment notes indicates he complained of forgetful episodes daily on one visit. (See MTR (5) pg. 1). However, throughout the record indicates that his memory (remote, recent and immediate) was intact. (See October 2009 VA Examination; see also MTR (1) at 9; MTR (3) at pg. 2; MTR (5) 1, 5). Moreover, that level of impairment has been specifically contemplated by the Ratings Schedule; directs a disability rating of 30 percent for mild memory loss (such as forgetting names, directions, and recent events). Undoubtedly, the Veteran's service connected impairment poses some challenges in his occupational and social functioning. What is clear, however, is that a disability rating in excess of 30 percent is not warranted. Throughout the period on appeal, the Veteran presented with depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, which most closely resembles a 30 percent disability rating. The Veteran's occupational impairment appears to be primarily attributable to non-disability impairment related issues; an arrest for unlicensed contractor work and a post-service hand injury. Prior to these events, he was self-employed; indicative of a capacity to function satisfactorily. His anxiety disorder manifests in social impairment occasionally with his friends and family. While he has had challenges with his temper, there is no evidence of record that indicates he exhibited more severe symptoms. Therefore, a disability rating in excess of 30 percent is not warranted. ORDER Entitlement to an increased initial disability rating in excess 30 percent for anxiety disorder is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs