Citation Nr: 18144912 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 10-45 949 DATE: October 25, 2018 ORDER Entitlement to an initial disability rating in excess of 50 percent for anxiety disorder from September 22, 2009, including entitlement to an extraschedular rating is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide exposure and service-connected disabilities is remanded. Entitlement to service connection for a heart disability, presently diagnosed as atrial fibrillation, to include as secondary to herbicide exposure, service-connected disabilities, and hypertension is remanded. Entitlement to service connection for hepatitis C, to include as secondary to service-connected disabilities is remanded. Entitlement to a disability rating greater than 60 percent for total right knee replacement from January 1, 2014, including entitlement to an extraschedular rating is remanded. FINDING OF FACT The Veteran’s anxiety disorder is not manifested by symptoms equivalent in severity, frequency, and duration to 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. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for anxiety disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to June 1970, with service in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a personal hearing before a Veterans Law Judge (VLJ) in April 2013. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In November 2015, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different VLJ; otherwise the case would be reassigned. In December 2015, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. In February 2016, the Board, in pertinent part, granted a 30 percent rating for anxiety disorder prior to September 22, 2009 and denied more than 50 percent from September 22, 2009. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). The Court granted an August 2016 joint motion for partial remand (JMR), which vacated the Board’s decision as to the portion of the appeal denying a rating in excess of 50 percent from September 22, 2009 and remanded the appeal in accordance with the terms of the JMR. A May 2017 Board decision remanded the issue of an increased disability rating for anxiety disorder from September 22, 2009 for additional development, specifically a new examination. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran’s anxiety disorder the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.” 38 C.F.R. § 4.7. The Veteran’s anxiety disorder is rated under 38 C.F.R. § 4.130, DC 9400, which provides the rating criteria for generalized anxiety disorder. Ratings for anxiety disorder are provided for under the General Rating Formula for Mental Disorders. A 10 percent disability rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9440. A 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is assigned 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-term 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 and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Lastly, a 100 percent evaluation 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; intermittent ability 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. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability arising 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(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) scale is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) (DSM-IV). A GAF score of 41-50 is defined as: “[s]erious 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).” A GAF score of 51-60 is defined as: “[m]oderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” A GAF score of 61-70 indicates: some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-V.” As the Veteran’s increased rating claim was originally certified to the Board on August 14, 2014, the DSM-V is applicable to this case. However, according to the DSM-V, clinicians do not typically assess GAF scores. The DSM-V introduction states that it was recommended that the GAF be dropped from DSM-V for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF scores that date prior to August 2014; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. 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). Higher than 50 Percent for Anxiety Disorder from September 22, 2009 Turning to the evidence, in September 22, 2009, the Veteran reported intrusive recollections, avoidance behavior, detachment and restricted range of affect, sleep disturbances, irritability or outbursts of anger, and exaggerated startle response. Thought process was goal directed. Mood was anxious. Affect was congruent and full, although he became tearful when speaking of his son. Insight and judgment were fair. He denied having any friends, as well as suicidal or homicidal ideation. A GAF score of 53 was assigned, indicating moderate symptoms. At the April 2013 Board hearing, the Veteran testified that he avoided other people. He also reported that he had increasing difficulty due to anger. During a December 2013 VA examination, the Veteran reported being married for 42 years and having a positive relationship with his spouse and son, as well as a good relationship with his youngest sister, but not much of a relationship with his oldest sister. Extracurricular activities included going to the movies with his wife, going to the beach, doing jigsaw puzzles, attending church around 6 times a year, and visiting tourist attractions. He reported bowling in a league previously, but quit because it became too expensive. He denied having any friends and stated that he felt unconformable around people. He reported that he had worked construction jobs until five years earlier when he quit due to knee problems. He reported doing odd jobs for neighbors, but had not done any recently due to difficulty climbing a step ladder. He added that he did not get along with others while working. On mental status examination, the Veteran presented with depressed mood, anxiety, suspiciousness, mild memory loss (such as forgetting names, directions, or recent events) although generally intact, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. He was adequately groomed and dressed appropriately. He was cooperative, undistracted, and maintained appropriate eye contact. Speech was spontaneous, easily understood, and of average rate and volume. Mood was reported as “ok.” Affect was eurythmic and congruent with mood. No deficits in concentration were found. Thought process was coherent, logical, and goal directed. There were no audio or visual hallucinations, delusions, or illusions. Insight and judgment were fair. He was diagnosed with anxiety disorder and assigned a GAF of 53, indicating moderate symptoms. VA treatment records from December 2014 show that the Veteran presented with moderate depression in context of multiple health issues. He had low mood, anhedonia, lethargy, and amotivation present most of the day, nearly every day. He reported not feeling like himself and that his family had noticed the change. In a May 2015 VA psychiatric outpatient note indicate that the Veteran did not tolerate the medications previously prescribed as they made him lose coordination and feel out of place and “terrible.” His wife reported that he seemed fatigued with reduced concentration and appetite. She stated, “I want my husband back.” The Veteran reported continued depressive symptoms, although improved anxiety. During a July 2015 VA examination, the Veteran was diagnosed with generalized anxiety disorder with some depressive symptoms, apparently related to health conditions. He was noted to be in treatment for opioid dependence. The examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran presented with depressed mood, anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. He had difficulty in adapting to stressful circumstances, including work or a work like setting. He was dressed appropriately with good hygiene and grooming. He was alert and oriented to person place and time. Mood was dysphoric. Affect was dysthymic and anxious, blunted in range and appropriate to topic. His attitude was cooperative and his speech was normal. Thought process was logical and goal-directed. No delusions or hallucinations were noted or reported. Behavior was appropriate. No impairment of memory and attention was noted. Insight and judgment were grossly intact. Ability to engage in activities of daily living was not compromised. The Veteran reported he avoided things like watching the news, although he enjoyed watching baseball. The examiner found the Veteran to suffer from a depressed mood for most of the day, nearly every day. He had severe sleeping difficulties and psychomotor agitation or retardation nearly every day. He admitted to suicidal ideation, but denied intent or plans. He suffered from excessive anxiety and worry resulting in restlessness, irritability, muscle tension, and sleep disturbances. His anxiety caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. A May 2016 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. On mental status examination, the Veteran presented as adequately groomed and dressed. He was cooperative. Mood was euthymic and affect was congruent with mood. Memory was intact and concentration had no deficits. He was coherent, logical, and goal directed. He denied hallucinations, delusions, or illusions. Insight and judgment were good. Memory was intact based on testing. He attributed his previous suicidal thoughts to opioid withdrawal. He described/endorsed mild but daily symptoms associated with depression and anxiety, including isolation, irritability, and low energy. The examiner reported that the Veteran’s psychiatric symptoms mildly impaired his ability to sustain concentration to perform simple tasks and moderately impaired his ability to respond to others and respond appropriately to changes in the work setting. July 2018 VA mental health notes indicate that the Veteran denied opiod cravings, adverse medication effects, symptoms of depression, anxiety, mania, psychosis, and suicidal or homicidal ideations, plans, or intent. During an August 2018 VA examination, the Veteran was diagnosed with generalized anxiety disorder and opioid use disorder, in sustained remission, on maintenance therapy. His symptoms were noted as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. On mental status examination, he presented as clean, neatly groomed, and appropriately dressed. He maintained good eye contact and was oriented. Mood was good and affect was appropriate but tearful at times. Thought content was future oriented. Thought processes were linear, logical, and goal-directed. He denied hallucinations. Attention and concentration were normal. Insight and judgment were good. Memory appeared intact. He denied current suicidal ideation, plan, or intention. He also denied homicidal/aggressive ideation. The examiner assessed the Veteran’s psychiatric symptoms as moderate. The Veteran denied having a panic attack “in a while.” In addition, the Veteran reported that he did not get angry easily anymore due to Prozac, but got mild irritation on random occasions but “[kept] it inside.” Based on the aforementioned, the Board finds that the evidence of record does not indicate that a 70 percent rating is appropriate at any time in this matter. There has been no indication that the Veteran has engaged in obsessional rituals. He does not have illogical, obscure, or irrelevant speech. Rather, his speech has been wholly coherent and goal directed. Although he does have regular anxiety, there is no indication that he experiences panic or depression affecting his ability to function independently, appropriately and effectively. His GAF scores show moderate symptoms. He has not engaged in any impaired impulse control. He has been oriented to person, place, and time. He has consistently presented with good personal appearance and hygiene and is generally cooperative during his various examinations. Pursuant to the August 2016 JMR, the Board notes that although the Veteran reported increasing difficulty due to anger during his August 2013 Board hearing and at the December 2013 VA examination, he maintains effective relationships with multiple people including most of his family. He also has a friend with which he socializes. While he has reported difficulty maintaining employment, he generally reports that his issues concern his physical disabilities, and not his inability to function in a social environment. In the December 2013 VA examination, he admitted to having positive relationships with several people at his previous seasonal employment and obtaining positive feedback. Furthermore, the most recent VA examinations did not note any anger problems and the Veteran’s attitude was cooperative and his behavior was appropriate. In August 2018, he also denied aggressive ideation and admitted he did not get angry easily due to his medications. In addition, although the Veteran reported suicidal ideation during his July 2015 examination, he denied suicidal ideations during the December 2013 VA examination. He also denied suicidal ideations during the May 2016 and August 2018 VA examinations and attributed previous ideations to opioid withdrawal. Thus, the Veteran’s suicidal ideations were not continuous throughout the appeal period. Although the Veteran’s symptoms appear to affect his mood, there is no indication that they cause impairment with regard to school, family, judgment, or thinking. Although the June 2015 VA examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, the May 2016 VA examiner found he had occupational and social impairment with reduced reliability and productivity. In addition, his thought processes are logical and goal directed with normal attention, concentration and intelligence. Insight and judgment is consistently noted to be good. Abstract reasoning is without obvious impairment. Again, while he has reported issues maintaining employment, those issues appear from the record to primarily be related to his physical condition, not his psychological condition. For all these reasons, the Board finds that the Veteran’s symptoms have not caused occupation and social impairment with deficiencies in most areas, and therefore, a 70 percent rating is not warranted at any time to date. The Board also finds that total impairment has not been shown at any point during the period on appeal. No examiner has found as such and the Veteran has admitted to maintaining social relationships with his family and engaging in regular pleasure activities. Further, although the Veteran has indicated issues maintaining employment, he has attributed that primarily to his physical disabilities. There is no indication that the Veteran is completely prevented from working by his anxiety disorder. Neither does the record show that the Veteran exhibited symptoms such as gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Neither is there any indication of auditory or visual hallucinations or delusions. Accordingly, there is presently no evidence in the record upon which upon which to assign a 100 percent rating. See 38 C.F.R. § 4.130, DC 9440. Lastly, the Board has also considered whether an extraschedular evaluation is warranted in this case, however, here, the schedular evaluation is adequate. The symptoms of the Veteran’s anxiety disorder have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that his disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran’s disability picture requires the assignment of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The Board reiterates that a higher rating than 50 percent for anxiety disorder under DC 9411 is not warranted. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Service Connection for Hypertension, Heart Disability, and Hepatitis C The Veteran is service connected for a total right knee replacement, anxiety disorder, right knee instability, and surgical scar of the right knee associated with total right knee replacement. However, the most recent VA examination, dated May 2016, did not indicate whether the Veteran’s hypertension, heart disability, and hepatitis C were related to all service-connected disabilities. As such, new opinions are necessary. Increased Rating for Right Knee Disability The Board regrets any further delay in this case, but finds a remand is required with respect to the claim for an increased rating for right knee disability. An additional VA examination is necessary in light of the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The Veteran’s right knee was most recently examined by VA in May 2016. Unfortunately, the examination report does not meet the specifications of Correia. The examination report contains range of motion testing for what is presumably active motion, but not in passive motion, weight-bearing, and non-weightbearing. An additional examination is therefore necessary under 38 C.F.R. § 3.159(c)(4) to ensure compliance with the decision in Correia. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with regard to his claims for hypertension and a heart condition. The complete record, including a copy of this remand, should be made available to the examiner for review. Any and all diagnostic testing deemed necessary should be conducted. The examiner is requested to provide a diagnosis for any and all heart disorders found, to include atrial fibrillation. For each diagnosed heart condition (with the exception of hypertension), the examiner should explicitly state whether or not that diagnosis may fall under the diagnostic umbrella of ischemic heart disease and provide a rationale for that opinion. Thereafter, for each diagnosis (including hypertension and atrial fibrillation) the examiner should state whether it is at least as likely as not that the diagnosed condition had onset in service or manifested within a year of separation from active service. For each diagnosed condition (including hypertension and atrial fibrillation), the examiner should state whether it is at least as likely as not that the diagnosed condition is related to the Veteran’s in-service herbicide exposure. For each diagnosed condition (including hypertension and atrial fibrillation), the examiner should state whether it is at least as likely as not that the diagnosed condition is caused or aggravated the Veteran’s service-connected disabilities. For each diagnosed condition (including atrial fibrillation), the examiner should also state whether it is at least as likely as not that the diagnosed condition is caused or aggravated by hypertension. A complete rationale for these opinions should be provided and include citation to evidence of record, known medical principles, and medical treatise evidence. The examiner is reminded that the absence of evidence of treatment for hypertension or a heart disorder in the Veteran’s service treatment records, cannot, alone, service as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. Schedule the Veteran for a new VA examination in connection with his claim for hepatitis C. The examiner is requested to state whether it is at least as likely as not that the Veteran’s alcohol and substance abuse were caused by or symptoms of the Veteran’s service-connected anxiety disorder and/or right knee disability. If the examiner finds a connection between the Veteran’s service-connected disabilities and his alcohol and substance abuse, the examiner should state whether it is at least as likely as not that the Veteran’s hepatitis C was the result of that alcohol or substance abuse. A complete rationale for these opinions should be provided and include citation to evidence of record, known medical principles, and medical treatise evidence. The examiner is reminded that service-connection is not automatically precluded for a disorder by virtue of alcohol or drug dependency if that dependency was caused by or a symptom of another service-connected disability. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. Schedule the Veteran for a VA examination to determine the current severity of his right knee disability. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. The examiner must include testing in the following areas for the right knee: active motion, passive motion, weightbearing and non-weightbearing. If possible, range of motion measurements of the opposite undamaged joint should be provided. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the   required testing is not necessary in this case, he or she should clearly explain why that is so. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel