Citation Nr: 1806129 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-11 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder. 2. Entitlement to a compensable disability rating for hypertension. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1983 to September 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), and were remanded in October 2014. The Board notes that the Veteran originally requested to testify before a Veterans Law Judge at a Board hearing but withdrew that request in December 2012. In July 2015, the RO partially granted an increased rating for the Veteran's adjustment disorder. Because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's adjustment disorder manifested in, at worst, symptoms most nearly approximating occupational and social impairment with reduced reliability and productivity. 2. Throughout the pendency of the appeal, the Veteran's hypertension has required continuous medication, but has not manifested in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 50 percent, but no higher, for adjustment disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9440 (2017). 2. The criteria for a disability rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the Veteran's representative has made a number of arguments regarding the adequacy of the VA examinations performed in connection with the claims on appeal and has requested new examinations be performed. Alternatively, the representative argued that contemporaneous examinations be performed because the last examinations were obtained in June 2015. With regard to the adequacy of the examinations, the Veteran's representative argued that a June 2015 VA psychiatric examination is inadequate because the examiner did not take into account certain statements by the Veteran regarding his chronic adjustment disorder, and did not opine as to whether the Veteran's chronic adjustment disorder had an impact on his ability to work. The representative also argued that a June 2015 VA hypertension examination is inadequate because the examiner did not provide a rationale for the opinion that the Veteran's hypertension does not impact his ability to work. Upon review, the Board finds the examinations adequate for purposes of determining the appropriate disability ratings. The Board finds that the examiners reviewed the Veteran's pertinent medical history, conducted clinical evaluations of the Veteran, and provided adequate discussion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). When considered in conjunction with the other evidence of record, the Board finds the June 2015 examination reports are adequate. The Board notes that there is no requirement for an examiner to address every statement the Veteran makes regarding the severity of his condition. Rather, the examiner must take into account a number of factors regarding occupational and social functioning and determine the ultimate level of impairment. There is no indication that the psychiatric examiner did not consider all relevant statements by the Veteran that were in the record, including statements regarding social and work relationships. Furthermore, there is no requirement that the examiner provide a yes or no answer to the question of whether a disability has an impact on a Veteran's ability to work. Here, however, as discussed below, the June 2015 psychiatric examiner did specifically opine on the level of social and occupational impairment caused by the Veteran's adjustment disorder. With respect to the argument that the hypertension examiner did not provide a rationale for the statement that the Veteran's hypertension did not impact his ability to work, the Board notes that the examination report containing that opinion references the Veteran's medical history, was formulated following a review of the Veteran's medical records and claims file, and, taken as a whole, provides an adequate explanation of the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). Accordingly, the Board finds the examinations adequate and finds no prejudice to the Veteran in proceeding with adjudication of the claims. With respect to the necessity for contemporaneous examinations, the Board notes that while a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (April 7, 1995). Here, neither the Veteran nor his representative has asserted that his conditions have worsened; rather, this argument appears to be based solely on the amount of time that has passed since the last examinations. Accordingly, as the evidence does not reflect a worsening in the Veteran's conditions, the Board finds new examinations unnecessary. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist, beyond further general, nonspecific arguments regarding examination adequacy. 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 a duty to assist argument). Accordingly, the Board may proceed with adjudication of the claim. The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings 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; 38 C.F.R. § 4.1 (2017). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 21 Vet. App. 505. Adjustment Disorder The Veteran's service-connected adjustment disorder is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9440. The Board notes that Diagnostic Code 9440 directs the rater to consider the appropriate rating under the General Rating Formula for Mental Disorders (Mental Disorders Formula). Under the Mental Disorders Formula, 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: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). Id. 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; and difficulty in establishing and maintaining effective work and social relationships. Id. 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 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 (2017). One 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)). A GAF score of 61 to 70 indicates some mild symptomatology (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 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, 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). The Mental Disorders Formula does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Furthermore, the Board notes that the GAF Scale has been abandoned in the updated fifth edition of the DSM. In this case, however, the DSM-IV was in use at the time the medical entries of record were made. Thus, any GAF scores assigned remain relevant for consideration in this appeal. 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 the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (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. Id. at 442; Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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 Veteran first underwent VA examination in connection with this claim in June 2009, at which time the examiner diagnosed adjustment disorder associated with the Veteran's service-connected human immunodeficiency virus (HIV). The Veteran reported feeling inadequate and inferior because of his HIV-positive status, and feeling that other people were uncomfortable with him. He indicated that he preferred to keep to himself and did not engage in many activities. The Veteran further stated that he was married but had a lot of tension and frustration with his wife, that his stepdaughter did not want to be around him, and that his relationship with his daughter was strained. He occasionally spent time fishing with casual acquaintances, but did not feel that he had a good circle of friends. The examiner noted that the Veteran's symptoms included mild irritability, but that he did not appear to have suicidal ideation, hallucinations, or delusions, and his attention, memory, and judgment were within normal limits. The examiner assigned a GAF score of 70 and opined that the Veteran's symptoms were not severe enough to interfere with his occupational and social functioning. The Veteran most recently underwent VA examination in June 2015. He again indicated that he tended not to develop close relationships, including with co-workers in his job as a civilian substance abuse counselor for Marines, due to fear of others finding out about his HIV status. He reported that he did not participate in family events. The Veteran further indicated that he experienced daily worry about his physical symptoms, the effects of his medications on his overall health, and whether any new aches and pains were HIV-related, even though he had been told that his HIV was well-managed and at undetectable levels. The examiner noted symptoms including depressed mood, anxiety, suspiciousness, and mild memory loss, and reported that the Veteran was alert and oriented, logical and coherent, with no signs of a thought disorder or psychotic symptoms. The examiner ultimately opined that the Veteran's symptoms resulted in occupational and social impairment with an 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. Treatment records throughout the period on appeal reflect symptoms consistent with those noted upon examination. GAF scores ranged from 58 to 70, though they were almost always 60 or above. In February 2017, the Veteran submitted a statement reporting that his adjustment disorder makes him distrustful of others and that he has been insulted, threatened, and refused an employment opportunity due to his diagnosis, although it is unclear whether he intended to reference his HIV diagnosis or adjustment disorder diagnosis. He further stated that he had constantly elevated stress and awareness levels regarding unintentional or accidental disclosure of his HIV diagnosis, which limited his social interactions. The Veteran reported that he was not comfortable in most social situations, including public gatherings, due to a fear that he "looked sick" to others. He stated that he avoided hugging and other physical contact when possible to avoid potential exposure. Finally, he indicated that he was able to work because his job limited his extended time with coworkers, but that he had to steel himself for meetings and team events when he feared he would have to answer questions about weight loss or looking tired. Upon review, the Board finds that a 50 percent rating, but no higher, is warranted. In that regard, the Board notes that the Veteran described a very high level of anxiety regarding work and social relationships and interactions due to fear of accidentally disclosing his HIV diagnosis. He indicated that he was unable to participate in family events and had great difficulty when his work required personal interaction. Essentially, the Veteran has difficulty in establishing and maintaining effective work and social relationships. Furthermore, he reported short-term memory impairment as well as disturbances in mood. Accordingly, the Board finds that the Veteran's symptoms more closely approximate the criteria for a 50 percent disability rating. The Board does not find, however, that the criteria for a 70 percent or total rating have been met. The Veteran is still able to work and has been in the same position for several years. While he described tension with his wife, he has been able to maintain a marriage and has relationships with his daughter and stepdaughter. Additionally, the Veteran reported no suicidal ideation, and no examiners or clinicians noted panic attacks, impaired impulse control, neglect of personal appearance or hygiene, gross impairment to thought processes, delusions or hallucinations, or other similar symptoms. Furthermore, no clinician opined that the Veteran's symptoms resulted in anything more severe than occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the Board finds that a rating in excess of 50 percent cannot be granted. Hypertension The Veteran's hypertension is rated as noncompensable under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101, which provides that a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2017). The Veteran first underwent VA examination in connection with this claim in June 2009. Blood pressure readings were 145/90, 152/94, and 148/100. The Veteran denied any incapacitating episodes or effect on his activities of daily living or occupation. The examiner noted that the Veteran intermittently took antihypertensive medications. The Veteran most recently underwent VA examination in June 2015. Blood pressure readings were 131/75, 132/81, and 134/80. The examiner opined that the Veteran's hypertension was well-controlled on medication, and that it did not impact the Veteran's ability to work. Treatment records throughout the period on appeal reflect diastolic pressures ranging from approximately 64 to 102, although generally below 100, and systolic pressures ranging from approximately 110 to 164, although generally below 160. In February 2017, the Veteran asserted that VA treatment records indicated that his diastolic pressures had ranged from 100 to 133 and his systolic pressures from 140 to 165 on three different dates; however, the Board is unable to corroborate these assertions in the records. The Veteran further stated that he had experienced several episodes of dizziness and vertigo, as well as undocumented losses of consciousness and syncope. He reported that he was constantly aware of his potential for syncope and did not allow himself to get involved in activities that require quick movement or exertion, and feared that his employers would consider him a risk and terminate his employment. Upon review, the Board finds that a 10 percent disability rating, but no higher, is warranted for hypertension. In that regard, the Board notes that the Veteran's diastolic pressure occasionally ranged near or above 100, and that he required medication to control his pressures. The Board cannot find, however, that a rating in excess of 10 percent is warranted, even considering the Veteran's reports of higher blood pressure readings. Even taking these reports into account, the evidence does not demonstrate diastolic pressures predominantly 110 or more, or any systolic pressures over 200. While the Veteran has reported syncope, there is no competent medical evidence relating the syncope, which is defined only as "a faint; temporary loss of consciousness due to generalized cerebral ischemia" to hypertension. Dorland's Medical Dictionary for Health Consumers (2007), accessed January 5, 2018 from https://medical-dictionary.thefreedictionary .com/syncope. VA examiners noted only that the Veteran's hypertension was well-controlled and did not result in incapacitating episodes or affect his ability to work. Accordingly, the Board cannot find that a disability rating in excess of 10 percent is warranted. In reaching these conclusions, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his conditions, but, to the extent the Veteran believes that he is entitled to higher ratings than assigned herein, concludes that the findings during medical evaluation are more probative than his assertions to that effect. Furthermore, the assertions of the Veteran regarding the severity of his disabilities are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran but has also relied heavily on VA examinations, which duly considered the Veteran's subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. Neither the Veteran nor his representative has raised any other issues with respect to the increased rating claims, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for adjustment disorder is granted. Entitlement to a disability rating of 10 percent, but no higher, for hypertension is granted. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs