Citation Nr: 1805043	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-08 524	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an evaluation in excess of 50 percent from October 31, 2014 to December 29, 2016, for anxiety disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel

INTRODUCTION

The Veteran had active service from January 2000 to April 2002.

This matter was originally on appeal from rating decisions dated in December 2009 and September 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In May 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

In September 2016, the Board remanded the appeal for evidentiary development. While the case was in remand status, a 100 percent rating for the anxiety disorder was assigned, effective December 29, 2016. This represents a complete grant of the requested benefit as of that date, but earlier periods remained at issue. 

In May 2017, the Board, in pertinent part, denied entitlement to an evaluation in excess of 30 percent prior to October 31, 2014 for anxiety disorder and remanded the issue of entitlement to an evaluation in excess of 50 percent from October 31, 2014 to December 28, 2016 for additional evidentiary development. This sole remaining issue has now been characterized as set forth on the title page and has returned to the Board for further consideration.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).



FINDING OF FACT

For the period of October 31, 2014 to December 29, 2016, the Veteran's symptoms of anxiety disorder resulted in occupational and social impairment with reduced reliability and productivity in most areas. Symptoms of total occupational and social impairment have not been demonstrated.


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, for the period of October 31, 2014 to December 29, 2016, the criteria for an evaluation of 70 percent for anxiety disorder, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.130, Diagnostic Code 9434 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decisions on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. There is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.

The Board acknowledges that this appeal was returned to the Board without the issuance of a supplemental statement of the case. Normally, 38 C.F.R. § 19.31 (2017) provides that after the AOJ develops the record, a supplemental statement of the case should be issued. However, in the present appeal, the Veteran was requested to verify if he underwent any psychiatric evaluations during the pertinent period, but he did not respond and no additional medical records were added to the record. Here, the directives of the Board's May 2017 remand are interpreted to reflect that a supplemental statement of the case is not required in this instance. See 38 C.F.R. § 19.31(c)(2). Based on the above, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Legal Principles

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994).

In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.

Facts and Analysis

The Veteran contends that he is entitled to an evaluation in excess of 50 percent for anxiety disorder for the period from October 31, 2014 to December 29, 2016. Such disability has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, as 50 percent disabling during this period. As indicated above, the Veteran's evaluation for anxiety disorder was later increased to 100 percent, effective December 29, 2016, which is the date of his most recent and pertinent VA psychological examination. The Board's May 2017 decision also denied an evaluation in excess of 30 percent for the period prior to October 31, 2014. Thus, the Veteran's increased evaluation for anxiety disorder for the period from October 31, 2014 to December 29, 2016 will now be addressed. 

Under Diagnostic Code 9434, which is governed by a General Rating Formula for Mental Disorders, a 50 percent evaluation 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation 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 work like setting); inability to establish and maintain effective relationships. Id.

A 100 percent evaluation is indicated where there is 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.

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, 118 (Fed. Cir. 2013). 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. See 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 the veteran's impairment must be "due to" those symptoms, 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.

For the period from October 31, 2014 to December 29, 2016, it appears that the Veteran received some counseling and therapy, mainly by way of telephone encounters. It also appears that the Veteran was incarcerated at some point during this period. The Board acknowledges that in its prior May 2017 remand, attempts were to be made to obtain any actual treatment records, but results were unsuccessful. The Board is thus left to review the available VA therapy reports and telephone reports and to determine the severity of the Veteran's anxiety disorder during this time period.

A November 2014 report noted that the Veteran continues to take medications for his anxiety disorder, which seemed to help him cope with his symptoms. The Veteran stated that he has been experiencing multiple stressors including his recent divorce, problems with his son at school and at home, and that he had recently been accused of unsubstantiated abuse of his daughter. The Veteran explained that his daughter was suspended from school and then made false abuse allegations that resulted in both of his younger children being removed from his home. The Veteran expressed great concern about the status of the relationships with his children and was also experiencing some financial problems that caused additional stress on his familial relationships.

An addendum to this report noted that the Veteran experienced nightmares and was constantly on guard, watchful, and easily startled. It was also noted that he intentionally separates himself from others. The Veteran indicated feeling helpless but denied suicidal ideation or feelings of self-harm. 

A December 2014 report noted that the Veteran was still struggling with family issues. He expressed concern about the custody of his children due to the fact that he was accused of sexual abuse. The Veteran indicated that there is a chance that he could get custody of his children again if he attended sexual abuse therapy, but was unsure if he would attend. The Veteran denied any suicidal or homicidal ideations. 

A January 2015 report noted that the Veteran was recently incarcerated for 3 weeks for sexual abuse pertaining to his daughter. The Veteran reported that he is not guilty and currently under house arrest until his next court appearance. The Veteran stated that he recently lost his job because of the incarceration and that his home is now in foreclosure and that he may declare bankruptcy. The social worker reported that the Veteran sounded "very depressed on the phone" and that the Veteran was in a great deal of distress due to his financial and familial problems. The Veteran denied any suicidal or homicidal ideations.

Treatment reports from February 2015 to October 2015 noted that the Veteran continued to experience problems sleeping and symptoms of depression. The reports also document that he missed a number of his therapy appointments during this time.

A November 2015 report noted that the Veteran claimed to have been hospitalized recently because he had run out of his prescription medication. The Veteran explained that he was still on house arrest, which has limited his ability to attend his therapy appointments. The Veteran stated that his sleep pattern is abnormal, but again denied any suicidal or homicidal ideations. 

A January 2016 report from the Veteran noted that he was still experiencing nightmares and that he would wake up in a cold sweat, screaming and thrashing about in bed. He stated that he has considered calling the Veteran's Crisis Hotline but does not want to be mislabeled with the stigma of being "mentally unstable." The Veteran also stated that he is still in financial distress and that none of his friends are willing to support him or visit him anymore. 

July 2016 reports noted that the Veteran has been having major panic attacks. These attacks were typically preceded by severe anger and frustration. The Veteran also claimed be experiencing some serious legal and financial issues and that he may lose his home. 

The Board finds that the Veteran's anxiety disorder symptoms warrant an increased evaluation of 70 percent for the period of October 31, 2014 to December 29, 2016. However, they do not merit a rating in excess of 70 percent. Throughout this period on appeal, the Veteran had problems maintaining employment due to his incarceration and alleged sexual abuse. His therapy sessions reveal a progression of anxiety disorder symptoms including disturbed mood and abnormal sleep patterns with frequent nightmares. While the Veteran denied any suicidal or homicidal ideations during this time period, he continued to experience severe panic attacks that were preceded by extreme anger and frustration. Moreover, it appears that as the Veteran's legal and financial troubles worsened, his friends began to abandon him and his familial relationships deteriorated substantially. Finally, a review of the December 29, 2016 VA examination report shows that the examiner had reviewed the progress notes discussed above, and noted that the Veteran has been having more difficulty dealing with his anxiety disorder symptoms, including increased stress and irritability. The examiner also stated that the Veteran has suffered from major psychosocial adjustment and is considerably more distressed than at the time of his last examination. Therefore, with resolution of reasonable doubt in the Veteran's favor, the Veteran's anxiety disorder warrants a 70 percent evaluation for the period prior of October 31, 2014 to December 29, 2016. 

However, based on the above medical evidence of record, the Veteran's anxiety disorder symptoms did not result in total occupational and social impairment until the date of his most recent and pertinent VA examination, as indicated by a trained medical professional. Thus, the Board cannot grant an increased evaluation of 100 percent for the period on appeal.

As to lay evidence, in conjunction with his increased evaluation claim, the Board has considered the Veteran's lay statements. In increased evaluation claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected anxiety disorder. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Board finds that the lay evidence of record from the Veteran throughout the appeal is generally both competent and credible; however, the Board finds that it does not support a higher evaluation under any applicable Diagnostic Code. Indeed, much of the medical evidence is based exclusively on the Veteran's own reported symptoms.

In sum, the Veteran's anxiety disorder symptoms during the period of October 31, 2014 to December 29, 2916 are more characteristic of a disability picture that is contemplated by a 70 percent evaluation. Neither the lay or credible medical evidence shows his symptoms meet the level required for a 100 percent evaluation during this period. Given the totality of the evidence of record, the Board finds the Veteran's anxiety disorder symptoms align more with a 70 percent disability evaluation, as the evidence more so suggests occupational and social impairment with reduced reliability and productivity in most areas.


ORDER

Entitlement to an evaluation of 70 percent for anxiety disorder, but no higher, is granted for the period from October 31, 2014 to December 29, 2016, subject to applicable laws and regulations.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs