Citation Nr: 18146754 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 16-20 502 DATE: November 1, 2018 ORDER Entitlement to a disability evaluation in excess of 10 percent prior to November 9, 2016, and in excess of 30 percent therefrom, for maxillary sinusitis is denied. Entitlement to a disability evaluation in excess of 30 percent for an acquired psychiatric disability diagnosed as pain disorder is denied. Entitlement to an effective date earlier than June 14, 2010 for entitlement to service connection for an acquired psychiatric disability diagnosed as pain disorder is denied. Entitlement to an effective date earlier than June 14, 2010 for entitlement to service connection for irritable bowel syndrome is denied. REMANDED Entitlement to a compensable evaluation for irritable bowel syndrome is remanded. FINDINGS OF FACT 1. Prior to November 9, 2016, the Veteran’s maxillary sinusitis was productive of no more than one or two incapacitating episodes per year. From that date, there is no evidence the Veteran underwent surgery for the condition, or that he is beset by near constant sinusitis symptoms after repeated surgeries. 2. The Veteran’s psychiatric disability has not been productive of occupational and social impairment with reduced reliability and productivity, nor of occupational and social impairment with deficiencies in most areas, and there is no showing of total occupational and social impairment. 3. There is no evidence of a claim, formal or informal, for entitlement to service connection for an acquired psychiatric disability diagnosed as pain disorder, prior to June 14, 2010. 4. There is no evidence of a claim, formal or informal, for entitlement to service connection for irritable bowel syndrome, prior to June 14, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 10 percent prior to November 9, 2016, and in excess of 30 percent therefrom, for maxillary sinusitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.97, Diagnostic Code 6513 (2017). 2. The criteria for entitlement to a disability evaluation in excess of 30 percent for an acquired psychiatric disability diagnosed as pain disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.97, Diagnostic Code 9422 (2017). 3. The criteria for entitlement to an effective date earlier than June 14, 2010 for entitlement to service connection for an acquired psychiatric disability diagnosed as pain disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017). 4. The criteria for entitlement to an effective date earlier than June 14, 2010 for entitlement to service connection for irritable bowel syndrome have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from August 1988 to June 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a disability evaluation in excess of 10 percent prior to November 9, 2016, and in excess of 30 percent therefrom, for maxillary sinusitis The Veteran’s sinusitis has been evaluated under Diagnostic Code 6513 for chronic maxillary sinusitis, which refers the adjudicator to the General Rating Formula for sinusitis. 38 C.F.R. § 4.97. Under the General Rating Formula for sinusitis, a 10 percent evaluation is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-capacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-capacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. A Note to the General Rating Formula for Sinusitis indicates that an incapacitating episode of sinusitis means one that required bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Codes 6510-6514, Note. A review of the record makes clear that a higher evaluation is unwarranted for either portion of the appeal period. The Veteran was afforded a VA examination in April 2010, where it was revealed that he suffered, at that time, an average of three to four sinus infections per year, but had not sought treatment or taken antibiotics for any. Examination notes further show the Veteran’s tympanic membranes and external ear canals were clear, and an anterior rhinoscopy showed a relatively straight septum with no pus or polyps, and no evidence of airway obstruction. A second VA examination took place in March 2014. There, the Veteran acknowledged suffering no incapacitating episodes over the previous year, but complained of periodic headaches associated with his sinus symptoms. A final VA examination was conducted in November 2016. There, the Veteran related that he had undergone prolonged antibiotic treatment and taken a week off from work due to a sinus infection during the prior year. He added he had received five prescriptions over the prior year for antibiotics, and had made ten doctor visits for the condition over the prior year. The examiner’s notes, based on the interview of the Veteran and a thorough records review, indicate two incapacitating episodes over the course of the prior year, with doctor visits occurring on average once every three months. The Veteran’s treatment records do not suggest a pattern of incapacitating episodes or antibiotic treatment beyond what is captured in the VA examiners’ reports for the relevant periods. Accordingly, the Board does not find a rating in excess of 10 percent warranted prior to November 9, 2016, nor does it find a rating in excess of 30 percent warranted thereafter. The early portion of the appeal period does not reflect incapacitating episodes as defined in the regulations, and the latter portion does not reflect that the Veteran has undergone surgery, or that he is beset by near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, with purulent discharge or crusting after repeated surgeries. Accordingly, the Board finds that the Veteran has been compensated adequately for his maxillary sinusitis for all portions of the period on appeal. 2. Entitlement to a disability evaluation in excess of 30 percent for an acquired psychiatric disability diagnosed as pain disorder The Veteran’s service connected psychiatric disability has been evaluated under 38 C.F.R. § 4.130, DC 9422. However, the actual criteria for rating the Veteran’s disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. He is currently in receipt of a 30 percent evaluation. 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- 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. A 70 percent rating is assigned 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. A 100 percent rating is assigned 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 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, or for the Veteran’s own occupation or 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 occupational and social impairment. Vasquez-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; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear 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. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran’s disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Having reviewed all the evidence of record, the Board finds that the Veteran is adequately compensated for his symptomatology by the currently assigned 30 percent evaluation, and his been for the entirety of the current appeal period. First, the record does not reflect a significant mental health treatment history. The Veteran has consistently related that his mental symptoms, including depression and anxiety, relate to his physical symptoms, which include knee and back pain. The Veteran does not appear to have treated his mental symptoms with psychotropic medications, or engaged in counseling or other mental health treatment to a significant degree during the appeal period. The Veteran has been afforded two VA examinations to explore the nature and manifestations of his mental disability. The first, conducted in August 2013, noted the Veteran’s complaints of anxiety and depression associated with chronic pain. The examiner explained that “[t]he vast majority of the Veteran’s psychosocial impairment is secondary to his pain disorder, as his anxiety disorder…currently has few symptoms associated with it.” The Veteran indicated his marriage was “pretty good,” but noted damaged familial relationships and limited socialization. A second VA examination was conducted in January 2018. The examiner indicated the Veteran’s symptoms as assessed at that examination did not warrant diagnosis of any mental disorder, explaining the Veteran’s conditions, previously identified, “appear resolved,” adding, “[the Veteran] does not meet full criteria for a DSM-V diagnosis at this time…The current evaluation did not reveal any clinically severe conditions.” While the Board shall not reduce the 30 percent rating currently assigned based on the January 2018 findings, this examination supports the notion that the Veteran is adequately compensated for his symptoms by that rating. A higher rating of 50 percent is not warranted for any portion of the appeal period because the Veteran’s symptoms have not resulted in occupational and social impairment with reduced reliability and productivity. For instance, there is no significant evidence in the record of panic attacks, stereotyped speech, memory impairment, difficulty understanding commands of any type, impaired judgment, or impaired abstract thinking. In fact, as noted above, the most recent VA examiner with whom the Veteran met opined that his mental disorder had resolved, noting the lack of any clinically severe symptoms. Nor does the record indicate occupational and social impairment with deficiencies in most areas. For instance, the Veteran has never been noted to experience suicidal ideation, obsessional rituals, illogical speech or thought, panic attacks or debilitating depressive episodes, spatial disorientation, or neglect of personal appearance or hygiene. The record reveals no violent outbursts. The Veteran’s symptoms do not equate in severity, frequency, or duration to a 70 percent rating. As such, the Board finds the Veteran’s symptoms do not rise to the level contemplated in the criteria for a 70 percent disability rating. Further, there is no indication of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes, nor by delusions or hallucinations. There is no indication he has engaged in grossly inappropriate behavior, there is no objective evidence of memory loss or cognitive defects. Accordingly, the Board does not find that the criteria for a 100 percent rating are satisfied in this case. In sum, the Veteran’s symptomatology, as captured by the medical record covering the period at issue, does not approximate that contemplated in the criteria for a 50, 70 or 100 percent disability rating. Rather, the record demonstrates a trend of improvement over the course at the period at issue, and at no point has the Veteran been beset by the occupational and social impairment contemplated by higher ratings. Accordingly, a rating in excess of 30 percent for a psychological disability is not warranted for any portion of the appeal period. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Per the regulations, the effective date for service connection compensation claims is the date the claim was received or the date entitlement arose, whichever is later, unless the claim was received within one year of separation from service. 38 C.F.R. § 3.400(b)(2) (2017). Critically, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). 3. Entitlement to an effective date earlier than June 14, 2010 for entitlement to service connection for an acquired psychiatric disability diagnosed as pain disorder, and for entitlement to service connection for irritable bowel syndrome A review of the record shows that no claim for service connection, formal or informal, for either a psychiatric disorder or irritable bowel syndrome, was filed before June 14, 2010. As noted above, a showing that a disability may have been present before that date is insufficient to establish a basis for an earlier effective date for service connection. VA is not required to anticipate any potential claim for a particular benefit where, as here, no intention to raise it has been expressed by the Veteran. Brannon, at 35. In considering the evidence of record under the laws and regulations as set forth above, the Board must conclude that the Veteran is not entitled to an effective date earlier than June 14, 2010, for either of the above-listed service connection claims. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for irritable bowel syndrome is remanded. Further development must be completed before this claim can be finally adjudicated. A review of the record shows the Veteran was last afforded a VA examination in connection with his irritable bowel syndrome in September 2013. Over five years having passed since that examination, the Board finds a new examination necessary to explore the current nature and severity of the disability. The matter is REMANDED for the following action: 1. The AOJ should secure any outstanding VA and private medical records. 2. Then, schedule the Veteran for a VA examination to assess the nature and severity of his irritable bowel syndrome. The electronic file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran’s satisfaction, the appellant should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the statement of the case, and provided an opportunity to respond. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel