Citation Nr: 1802117 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-10 629A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating for anxiety disorder in excess of 10 percent from September 12, 2010, in excess of 30 percent from November 4, 2014, and in excess 50 percent from October 27, 2016. 2. Entitlement to an initial compensable disability rating for sinusitis. 3. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2000 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a September 2010 rating decision, the RO increased the disability rating for the Veteran's service-connected anxiety disorder to 10 percent disabling, effective September 12, 2010. In a September 2017 rating decision, the RO increased the disability rating for the Veteran's service-connected anxiety disorder to 30 percent disabling, effective November 4, 2014, and 50 percent disabling, effective October 27, 2016. As the increases did not represent a total grant of the benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Now, the case is once again before the Board. As will be discussed in the decision below, the Board finds that the Veteran is entitled to at least a 50 percent disability rating for her service-connected anxiety disorder, from July 21, 2016. However, further development is necessary to determine whether she is entitled to an even higher rating. Accordingly, the issue of entitlement to a rating in excess of 50 percent for anxiety disorder, from July 21, 2016, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACTS 1. Prior to July 21, 2016, the Veteran's anxiety disorder resulted in no more than occupational and social impairment due to mild or transient symptoms. 2. From July 21, 2016, the Veteran's anxiety disorder resulted, at least, in occupational and social impairment with reduced reliability and productivity. 3. The Veteran's service-connected sinusitis is manifested by no more than one or two incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting. 4. At no time during the pendency of the appeal has the Veteran had a current diagnosis of a left knee condition, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of the claim. CONCLUSIONS OF LAW 1. Prior July 21, 2016, the criteria for an evaluation of 30 percent for anxiety disorder were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. From July 21, 2016, the criteria for an evaluation of 50 percent for anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. The criteria for an initial 10 percent rating, but no higher, for sinusitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, Diagnostic Code 6513 (2017). 4. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2016). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A. Anxiety Disorder When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran is currently in receipt of a 10 percent rating for anxiety disorder for the period prior to November 11, 2014, and a 30 percent rating from November 11, 2014, and 50 percent rating from October 27, 2016. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. Under that formula, and as relevant here, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating 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 de-pressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating 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 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 When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). 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 a Veteran's impairment must be "due to" those symptoms, and that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). In April 2010, the Veteran was afforded a VA mental health examination. During the examination, the Veteran reported symptoms of frequent panic attacks (at least three panic attacks within the last six months), concentration problems, and depression. The Veteran reported losing less than a week of work due to anxiety attacks. The examiner diagnosed the Veteran with anxiety disorder and assigned a GAF score of 80. A May 2014 VA vocational rehabilitation counselor completed a Counseling Record Narrative Report concerning the Veteran's eligibility for vocational rehabilitation benefits. The counselor found that the Veteran's service-connected disability did not pose challenges to employability, noting that she was two weeks away from obtaining her bachelors of science in Project Management. In May 2014, the Veteran was afforded a second VA mental health examination. The Veteran presented to the examination casually and adequately dressed and groomed. The examiner observed some mild psychomotor agitation, but the Veteran remained cooperative during the examination. The examination report documented the Veteran exhibiting symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran denied hallucinations, homicidal ideations, and suicidal ideations. The examiner found the Veteran's anxiety disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. July 2016 VA treatment records document the Veteran's chief complaint as "I feel like I'm losing control." The VA clinician recorded the Veteran's reports of anxiety and depression. The clinician noted that the Veteran "denied having thoughts of harming herself, although she's extremely guarded and vague when answering this question." When the clinician asked about homicidal ideations, the Veteran responded that "I feel like I can probably hurt someone." She added that "I'm afraid I may do something." In October 2016, the Veteran was afforded a third VA mental health examination. The Veteran presented to the examination casually and adequately dressed and groomed. The Veteran reported having a good relationship with her two children. The examination report documented the Veteran exhibiting symptoms of depressed mood, anxiety, panic attacks that occur at least twice a week and disturbances of motivation and mood. The examiner found the Veteran's anxiety disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran denied homicidal ideations and suicidal ideations. The Veteran reported hearing familiar voices when she would become "really stressed out at work." September 2017 VA treatment records reveal that the Veteran presented to an emergency room of a local VA medical center twice in one week. The Veteran reported symptoms of anger and panic. The first treatment records noted no reports of homicidal or suicidal ideations. However, the second treatment record noted that the Veteran reported feeling worse. Specifically, the VA clinician found the Veteran to be "possibly suicidal." The evidence of record supports a higher rating of 30 percent prior to July 21, 2016. Throughout this period, medical treatment records documented frequent panic attacks, concentration problems, and depression. In addition, the May 2014 VA examiner found that the Veteran's anxiety disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the Board finds that the Veteran's anxiety disorder symptoms prior to July 21, 2016 approximate occupational and social impairment with occasional decrease in work efficiency, entitling her to a 30 percent disability rating. However, a rating higher than 30 percent disabling is not warranted. The record does not demonstrate occupational and social impairment with reduced reliability prior to July 2016. Specifically, reports of panic attacks remained less frequent than once a week. Reports of hallucinations, suicidal ideations, and homicidal ideations were absent from the record during this period. Also, the Veteran's maintained a full-time position, which showed an ability to maintain work relationships, handle complex tasks, and perform with adequate judgment. From July 21, 2016, the record of evidence supports a higher rating of at least 50 percent. In particular, the Veteran reported symptoms of profound anxiety, depression, and difficulty concentrating. Moreover, July 2016 VA treatment records documented vague statements from the Veteran, indicating the possibility of harming someone. The VA clinician described the Veteran as "extremely guarded." In addition, the Veteran remained dysphoric, tearful, and withdrawn during the consultation. Most recently, a September 2017 VA clinician described the Veteran to be "possibly suicidal." See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas). Hence, the medical treatment records, from service treatment records to the most recent VA examination, reveal that the severity, frequency, and duration of the Veteran's anxiety disorder cause reduced reliability and productivity. In short, resolving all doubt in the Veteran's favor, the Board finds that the evidence of record reflects anxiety disorder symptomatology and impairment that more nearly approximates the criteria for a 30 percent disability rating prior to July 21, 2016 and 50 percent disability thereafter. Although this decision represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of this issue would be premature and that additional evidentiary development is necessary, as outlined in the Remand portion of this decision, below. B. Sinusitis The Veteran claims that she is entitled to an initial compensable disability rating for sinusitis. Her sinusitis is currently rated under 38 C.F.R. § 4.97, Diagnostic Code 6513. Diagnostic Codes 6510 through 6514 pertain to various types of sinusitis, each of which is rated based on the criteria in a General Rating Formula for Sinusitis (General Formula). Under the General Formula, a noncompensable evaluation contemplates sinusitis detected by x-ray only. A 10 percent evaluation is warranted for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is warranted when there are three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment; or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis; or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A note following this section provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97. In August 2010, the Veteran was afforded a general VA medical examination to assess the severity of her sinusitis. The Veteran reported that the sinusitis began in October 2003. Since then, her sinusitis has been progressively worse. The examiner documented one incapacitating episode within the past 12-months and six non-incapacitating episodes within the last six months. January 2016 VA treatment records reveal the Veteran's admission to a VA medical center emergency room for complaints of sinus congestion, purulent green nasal discharge, post-nasal drip and sore throat for four to five days. The VA clinician recorded a diagnosis of acute sinusitis and prescribed amoxicillin, rest, and fluids. In October 2016, the Veteran was afforded a second VA examination for her sinusitis disability. The examiner documented the Veteran's complaints of episodes of sinusitis, headaches, pain of affected sinuses, and tenderness of affected sinuses. Within in the past 12 months, the examiner noted that the Veteran did not experience any incapacitating episodes, but she experienced a single non-incapacitating episode of sinusitis. In evaluating the record, the Board finds that the Veteran's sinusitis resulted in at least one incapacitating episode per year. The Board acknowledges that the October 2016 VA examiner found no incapacitating episodes within the last year. But, January 2016 VA treatment records documented treatment at a local VA medical center emergency room for complaints of sinusitis, and prescribed the Veteran antibiotics and rest. Further, the August 2010 VA examiner's notation of one incapacitating episode and six non-incapacitating episodes within the previous twelve months demonstrates that the Veteran's sinusitis symptoms have been ongoing. Resolving reasonable doubt in her favor, the Board finds that the medical evidence addressing whether the Veteran is entitled to an initial compensable disability rating is at least in equipoise, such that the Veteran's entitled to a 10 percent disability rating for sinusitis. A rating in excess of 10 percent is not warranted. The evidence of record does not demonstrate three or more incapacitating episodes per year of sinusitis requiring prolonged antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. II. Service Connection for a Left Knee Disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Additionally, when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Veteran seeks service connection for a patellofemoral pain syndrome, left knee, or an alternative left knee condition. May 2001 service treatment records documented the Veterans complaints of left leg pain. In addition a clinician recorded a diagnosis of patellofemoral pain syndrome in May 2001. In July 2010, the Veteran filed a claim of entitlement to service connection for a left knee condition. In August 2010, the Veteran was afforded a VA examination. During the examination, the Veteran reported gradual onset of pain in the left patella. But, the examination report documented a diagnosis of "resolved left PFS with no residual normal L knee." There are no other relevant records pertaining to the left knee. The Board acknowledges the Veteran's reports of left knee pain. However, an underlying disability has not been diagnosed, and pain alone, without a diagnosed or identifiable underlying malady or condition, is not in and of itself a compensable disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the Veteran is competent to state that she has left knee pain, as a lay person, she is not competent to provide evidence as to more complex medical questions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Furthermore, as the Veteran has not indicated that her left knee condition worsened since the August 2010 VA examination, a remand to ascertain whether she now has a left knee disability is also not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In short, the objective medical evidence of record does not establish a current left knee disability for VA purposes. In the absence of a current disability, additional discussion concerning nexus or presumptive service connection is not required, and service connection for left patellofemoral pain syndrome is denied. Upon consideration of all of the evidence of record, the Board finds, for the reasons explained above, that the opinions of the August 2010 are the most probative evidence of record and carries the most probative weight on the question of whether the Veteran's left knee pain is related to her service. As the preponderance of the evidence weighs against the claim, service connection for a disability of the left knee is denied. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER An evaluation of 30 percent prior to July 21, 2016 and 50 percent thereafter for anxiety disorder is granted. An initial evaluation of 10 percent for sinusitis is granted. Entitlement to service connection for a left knee disability is denied. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's service connection claim for entitlement to a disability rating in excess of 50 percent disabling for anxiety disorder. In regards to the Veteran's anxiety disorder claim, the current medical evidence of record does not clearly show how the frequency, severity, and duration of the Veteran's anxiety disorder symptoms affect her work, family relations, judgment, thinking, or mood. In particular, recent VA treatment records documented vague reports of homicidal or suicidal ideations. In July 2016, the VA clinician noted "vague HI w/o a plan." In addition, September 2017 VA treatment records indicated that the Veteran is "possibility suicidal." As these reported symptoms indicate that the Veteran's symptoms have worsened, the Board finds that another VA psychiatric examination must be provided on remand. Accordingly, the case is REMANDED for the following action: 1. Update the file with any VA treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified of such. 2. After completing the development requested above, schedule the Veteran for a VA psychiatric examination to assess the current nature and severity of her psychiatric disability. The examiner must identify the nature and severity of the Veteran's psychiatric symptoms and indicate the impact of the condition both socially and occupationally. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should specifically discuss the frequency, severity, and duration of the Veteran's psychiatric symptoms and describe how the symptoms have impacted the Veteran's work, family relations, judgment, thinking, and mood. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and her representative should be furnished a Supplemental Statement of the Case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs