Citation Nr: 18140276 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-13 652 DATE: October 2, 2018 ORDER Entitlement to an effective date earlier than August 6, 2012 for the grant of a 100 percent rating for non-obstructive coronary artery disease (CAD) is denied. Entitlement to an effective date earlier than August 6, 2012 for the grant of a 70 percent rating for generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) (generalized anxiety disorder) is denied. FINDINGS OF FACT 1. In a June 2010 rating decision, the RO granted service connection and a 30 percent rating for panic disorder without agoraphobia and major depressive disorder, recurrent and moderate. The Veteran did not file an appeal and the decision is final. 2. The earliest claim for increased rating for panic disorder without agoraphobia and major depressive disorder, recurrent and moderate was received on August 6, 2012. 3. A factually ascertainable increase in the Veteran's generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) (generalized anxiety disorder) is not shown during the one-year period preceding the receipt of the Veteran's claim on August 6, 2012. 4. In an April 2011 rating decision, the RO granted service connection and a 10 percent rating for CAD. 5. The earliest claim for increased rating for CAD was received on August 6, 2012. 6. A factually ascertainable increase in the Veteran's CAD is not shown during the one-year period preceding the receipt of the Veteran's claim on August 6, 2012 CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 6, 2012, for the grant of a 70 percent rating for generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) (generalized anxiety disorder) have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for an effective date prior to August 6, 2012, for the grant of a 100 percent rating for CAD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. In his March 2016 VA Form 9 and March 2016 statement, the Veteran and his representative indicated that he was only appealing the issues of entitlement to an effective date earlier than August 6, 2012 for the grant of a 70 percent rating for generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) and entitlement to an effective date earlier than August 6, 2012 for the grant of a 100 percent rating for CAD. He did not indicate that he wished to continue his appeal for an increased rating for generalized anxiety disorder and major depressive disorder (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent), service connection for hypertension, service connection for vertigo, service connection for sleep apnea, or entitlement to an earlier effective date for the grant of entitlement to special monthly compensation based on housebound status. Accordingly, those issues were not certified for appeal in the April 2016 VA Form 8, and the Board finds that those issues are not on appeal. Effective Date Legal Criteria The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 38 U.S.C. § 5110 (b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). 1. Entitlement to an effective date earlier than August 6, 2012 for the grant of a 70 percent rating for generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) (generalized anxiety disorder) is denied. In a June 2009 rating decision, the RO granted service connection for panic disorder without agoraphobia (also claimed as panic attacks). A 30 percent evaluation was assigned, effective July 24, 2008. In a November 2009 rating decision, the RO granted service connection for panic disorder without agoraphobia and major depressive disorder, recurrent, moderate. A 30 percent evaluation was assigned, effective May 28, 2008. In a December 2009 rating decision, the RO granted service connection for panic disorder without agoraphobia and major depressive disorder, recurrent and moderate. A 30 percent evaluation was assigned, effective May 26, 2008. In a June 2010 rating decision, the RO continued the 30 percent evaluation for panic disorder without agoraphobia with major depressive disorder, recurrent, moderate. The RO also severed service connection for the duplicate rating for panic disorder without agoraphobia with major depressive disorder, recurrent, moderate. The Veteran did not appeal the evaluation or effective date assigned in the June 2009, November 2009, December 2009 or June 2010 rating decisions. In August 2012, the Veteran filed a claim for an increased rating for his service-connected panic disorder. In a September 2013 rating decision, the RO granted an increased rating of 70 percent for panic disorder, effective August 6, 2012. In the January 2016 statement of the case, the RO recharacterized the psychiatric disability as generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate). The Veteran has appealed the effective date of the 70 percent rating, asserting that the date of the assignment of the 70 percent rating should be earlier as the evidence of record shows that his disability worsened prior to the filing of his increased rating claim in August 2012. See May 2014 notice of disagreement and March 2016 statement from the Veteran’s representative. As the Veteran did not file a notice of disagreement with the June 2010 RO rating decision, the June 2010 decision became final. The Veteran's date of claim for an increased evaluation for his generalized anxiety disorder is August 6, 2012. As noted above, an earlier effective date is permitted for increased disability compensation if that disability increased during the one-year period before the filing of the claim, if evidence is found within that time period showing such an increase. As such, an increased rating for the Veteran's disability will be granted as early as August 6, 2011, if the evidence shows such an increase is warranted. The Veteran's anxiety disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9412. All psychiatric disabilities, however, are evaluated under the General Rating Formula for Mental Disorders (general rating formula). Pursuant to the general rating formula, an anxiety disorder is rated 30 percent disabling when there is 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or 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 when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 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); 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 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. The medical evidence of record does not show symptoms of a generalized anxiety disorder that warrant a rating in excess of 30 percent prior to August 6, 2012 (between August 6, 2011 and August 5, 2012). In this regard, during VA treatment from 2009 to 2012, the Veteran endorsed symptoms of disturbances of motivation and mood, in that he was consistently noted to display differing levels of depression. These treatment records also show that the Veteran consistently reported some degree of anxiety and panic attacks, however although he reported panic attacks occurring more than twice a week in 2009, the record does not reflect that he reported them as frequently from 2011-2012. Furthermore, he has also reported that medication decreased the frequency of the attacks at times. Furthermore, on VA examination in February 2012, the Veteran reported that he was only having 2-3 panic attacks a year, and the examiner opined that his panic disorder caused occupational and social impairment with occasional decrease in work and intermittent periods of inability to perform occupational tasks. The Veteran also demonstrated difficulty in establishing and maintaining effective work and social relationships due to his panic disorder, in that he reported not having any friends. However, he did also report that he had a very good relationship with his wife of over 30 years. He also reported having a decent relationship with his 2 adult children from his first marriage, and spending a significant amount of time with his nephew. Furthermore, there is no evidence prior to August 6, 2012 of impaired abstract thinking or impaired judgment, as VA treatment records in 2009, 2010, 2011 and 2012 show that he consistently denied suicidal or homicidal ideation, there was no evidence of psychosis, and he was noted on mental status examination to have intact thinking and judgement. There is also no evidence of flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty in understanding complex commands, impairment of short- and long-term memory or other symptoms of similar severity, frequency or duration. As such, the Board finds that a 50 percent rating is not warranted. The Board also finds that the evidence prior to August 6, 2012 does not show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating. In this regard, as noted above, the Veteran has consistently reported having a good relationship with his wife of over 30 years, as well as his 2 adult children from his first marriage and his nephew. He has also reported attending a PTSD support group at the VA. Furthermore, although the record reflects that he has not worked full-time since 2000, and he reported having anxiety attacks during that employment; there is no indication in the record that the Veteran was fired or refused employment due to his generalized anxiety disorder. Furthermore, the Veteran reported on examination in February 2012 that he was volunteering to drive homeless veterans to appointments and jobs. There is also no indication in the VA treatment records or on VA examination between August 6, 2011 and August 5, 2012 of the Veteran having deficiencies in judgment or thinking, due to his panic disorder. In this regard, as noted above, VA treatment records from 2009-2012 show that he has consistently denied suicidal or homicidal ideation. The Veteran did endorse symptoms of moderate to severe depression throughout the appeal period; however, this symptomatology is already accounted for in the 30 percent rating currently assigned for this period. Moreover, the Board finds that the evidence does not show that the Veteran was totally socially and occupationally impaired due to his generalized anxiety disorder prior to the 70 percent rating being assigned on August 6, 2012. As noted above, he did report having a good and supportive relationship with his wife of over 30 years, his adult children from his first marriage and his adult nephew. And once again, the Board notes that there is also no indication in the record that the Veteran was fired or refused employment due to his generalized anxiety disorder, and he reported in 2012 that he was working voluntarily with other homeless veterans. As the preponderance of the evidence does not support a finding of total occupational and social impairment, a 100 percent rating is not warranted prior to August 6, 2012. The Board also notes that a VA mental disorders evaluation was completed in December 2015. Other than to note that the Veteran has not received mental health treatment sinc March 2012, and that his symptoms have significantly improved, the examiner does not specifically discuss medical evidence from August 2011 to August 2012, the period under consideration. Therefore, the Board concludes that the examiner’s findings cannot be used to support the grant of a rating in excess of 30 percent for the Veteran's generalized anxiety disorder prior to August 6, 2012. In summary, the Board finds that the Veteran may have demonstrated some of the symptoms required for a rating in excess of 30 percent for a generalized anxiety disorder prior to the assignment of the 70 percent rating on August 6, 2012. However, his major symptoms prior to August 6, 2012 were flashbacks and nightmares, intrusive thoughts, depression, decreased energy, anxiety and panic attacks, disturbances of motivation and mood, social isolation, avoidance of crowds, difficulty concentrating and focusing, occasional irritability and anger, but no noted periods of violence towards himself or others, crying spells, and impaired, not total, occupational and social functioning. Therefore, the Board finds that his symptoms more nearly approximate the criteria for a 30 percent rating prior to August 6, 2012. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted prior to August 6, 2012 and as such, an effective date earlier than August 6, 2012, for the grant of a 70 percent rating for the generalized anxiety disorder is not warranted. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 2. Entitlement to an effective date earlier than August 6, 2012 for the grant of a 100 percent rating for non-obstructive coronary artery disease (CAD) In an April 2011 rating decision, the RO granted service connection for CAD. A 10 percent evaluation was assigned, effective May 28, 2008. The Veteran did not appeal the evaluation or effective date assigned in the April 2011 rating decision. In August 2012, the Veteran filed a claim for an increased rating for his service-connected CAD. In a September 2013 rating decision, the RO granted an increased rating of 100 percent for CAD, effective August 6, 2012. The Veteran has appealed the effective date of the 100 percent rating, asserting that the date of the assignment of the 100 percent rating should be earlier as the evidence of record shows that his disability worsened prior to the filing of his increased rating claim in August 2012. See May 2014 notice of disagreement and March 2016 statement from the Veteran’s representative. As the Veteran did not file a notice of disagreement with the April 2011 RO rating decision, the April 2011 decision became final. The Veteran's date of claim for an increased evaluation for CAD is August 6, 2012. As noted above, an earlier effective date is permitted for increased disability compensation if that disability increased during the one-year period before the filing of the claim, if evidence is found within that time period showing such an increase. As such, an increased rating for the Veteran's disability will be granted as early as August 6, 2011, if the evidence shows such an increase is warranted. The Veteran's CAD is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Pursuant to Diagnostic Code 7005, a 10 percent rating is assigned for arteriosclerotic heart disease resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is assigned for arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for documented CAD resulting in: chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. The medical evidence of record does not show symptoms of CAD that warrant a rating in excess of 10 percent prior to August 6, 2012 (between August 6, 2011 and August 5, 2012). In this regard, on VA examination in April 2009, the Veteran’s cardiac workload capacity was at or above 8-10 METs. Furthermore, there was no evidence of cardiac hypertrophy or dilation on electrocardiogram or echocardiogram. More importantly, the medical evidence of record between August 6, 2011 and August 5, 2012, which includes VA treatment records, does not show CAD resulting in a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. The medical evidence also fails to show that the Veteran meets the criteria for a 60 percent or 100 percent rating between August 6, 2011 and August 5, 2012. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted prior to August 6, 2012 and as such, an effective date earlier than August 6, 2012, for the grant of a 100 percent rating for generalized anxiety disorder and major depressive disorder, (previously diagnosed as panic disorder without agoraphobia and major depressive disorder, recurrent and moderate) is not warranted. (Continued on the next page)   Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Fatima Yankey