Citation Nr: 18147114 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 12-17 993 DATE: November 5, 2018 ORDER Entitlement to a rating of 50 percent, but no greater, for service-connected anxiety disorder (also claimed as posttraumatic stress disorder (PTSD) and depression) for the period prior to November 2, 2014 is granted. Entitlement to a rating of 70 percent, but no greater, for service-connected anxiety disorder for the period since November 2, 2014 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the period prior to November 2, 2014, the Veteran’s symptoms associated with his service-connected anxiety disorder most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. For the period since November 2, 2014, the Veteran’s symptoms associated with his service-connected anxiety disorder most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. The Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 50 percent, but no greater, for service-connected anxiety disorder for the period prior to November 2, 2014 have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9434 (2017). 2. The criteria for entitlement to a rating 70 percent, but no greater, for service-connected anxiety disorder for the period since November 2, 2014 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes 9411, 9434. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.16(a), 4.17. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to a rating in excess of 30 percent for service-connected anxiety disorder for the period prior to November 2, 2014 Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the Veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing 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 ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation should be applied to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the Veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the Board will analyze the evidence of record to determine the Veteran’s current levels of disability. In doing so, the Board first notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claims. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Codes 9201-9440. A 70 percent disability 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 that is 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 disability rating is assigned 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. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In evaluating the Veteran’s level of disability, the Board has also considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture. The GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). Prior to August 4, 2014, VA’s Rating Schedule for psychiatric disabilities was based upon the DSM-IV. 38 C.F.R. § 4.130. The DSM was updated with a 5th Edition (DSM-V), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their “conceptual lack of clarity.” See DSM-V at 16. However, since the Veteran’s anxiety disorder claim was originally appealed to the Board prior to the adoption of the DSM-V, the DSM-IV criteria, including GAF scores, will be considered in the Board’s analysis. According to the DSM-IV, a GAF of 70-61 is appropriate if there are 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 personal relationships; a GAF of 60-51 is appropriate if there are 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); a GAF of 50-41 is appropriate if there are 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); and a GAF of 40-31 is appropriate if there is 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 adult avoids friends, neglects family, and is unable to work). See Quick Reference to the Diagnostic Criteria from DSM-IV, 46-47 (1994). The Veteran is currently rated at 30 percent disabled for his anxiety disorder for the period prior to November 2, 2014. However, he contends that his symptoms during that time more nearly approximate the criteria for a higher rating. The Board finds that the medical and lay evidence of record indicates the Veteran’s symptoms related to his anxiety disorder most nearly approximated occupational and social impairment with reduced reliability and productivity for the period prior to November 2, 2014. Prior to November 2, 2014, the Veteran consistently reported symptoms of intrusive thoughts, flashbacks, nightmares, anxiety, poor concentration, impairment of short-term memory, social isolation, lack of goals for life, insomnia and difficulty staying asleep, anxiety attacks multiple times per week, irritability and anger with verbal outbursts during periods of stress, disturbances of motivation and mood, depression and emotional numbness, and hypervigilance. During the period prior to November 2, 2014, the Veteran was assigned multiple GAF scores ranging between 35 and 70. The Board notes that, with the exception of scores assigned by the Veteran’s private psychologist, the Veteran’s GAF scores ranged from 53 to 70. The instances where the Veteran was given scores below 50 were in a March 2007 opinion, where he was assigned a GAF of 48, and a January 2009 opinion, where he was assigned a GAF of 35. However, the Veteran was assigned a GAF of 55 at a September 2008 VA examination and a GAF of 60 at a March 2010 VA examination. This presents a significant disparity in the analysis of the Veteran’s symptoms by his private psychologist and by VA examiners. Furthermore, in providing the noted opinions, the Veteran’s private psychologist indicated symptoms of intrusive thoughts, flashbacks, nightmares, gaps in memory of important details, chronic anxiety, anxiety attacks several times per week, lack of enthusiasm beyond basic survival, social detachment, emotional numbness and periodic disturbances, sleep difficulties, irritability and anger, poor concentration, problems with poor short- and long-term memory, and hypervigilance. The psychologist noted that the only reason the Veteran was able to maintain employment was because he worked alone and that it would be impossible for him to work with others. The Board finds that these symptoms do not reflect the “major impairment in several areas” described for such a GAF score in the DSM-IV, and are more consistent with the examples give for the other GAF scores, generally indicating moderate symptoms, assigned before and after the January 2009 private opinion. Further, in a February 2011 notice of disagreement, the Veteran’s attorney asserted that VA failed to properly analyze the probative value of his GAF scores in the records concerning occupational impairment. In support of this contention, the Veteran cited numerous cases which indicated that a GAF score of 50 represented a “benchmark of employability.” While none of the cited cases are binding herein, the Board notes that the Veteran was working full-time when the notice of disagreement was submitted, which when considered with the subject caselaw would indicate that his symptoms approximated a level of occupational impairment consistent with a GAF score of 51 or greater (i.e., representing at most moderate impairment). The Veteran’s attorney additionally cited Richard v. Brown, 9 Vet. App. 266 (1996), and stated that “a GAF score range of 50-54 indicates ‘serious’ symptoms/impairment and warrants a rating above 50 [percent].” However, as noted above, the DSM-IV states that a GAF in the range of 41-50 indicates serious symptoms, and at no point in the Richard decision does the Court of Appeals for Veteran’s Claims indicate that a particular GAF score corresponds to a specific disability rating. See Id. The Board notes that the Veteran’s medical treatment records during the relevant period also indicate that he experienced some symptoms which fall under the criteria for a rating in excess of 50 percent, but finds that the totality of the evidence of record more nearly approximates the criteria for a 50 percent rating. While the Veteran did not generally endorse either suicidal ideation or homicidal ideation during the period prior to November 2, 2014, VA medical records in August 2010, September 2010, October 2010, November 2010, and May 2014 indicate that the Veteran experienced thoughts of self-harm or of harming others, but did not have any intent or plan to act on such thoughts. The Board also notes that while the record does indicate that the Veteran exhibited verbal outbursts of anger when stressed, there is no indication that he was ever physically violent in association with his disability. The Board also notes that the Veteran’s wife provided lay statements that he had obsessive behavior, including keeping the blinds closed during the day and eating extremely fast, as if he were still in the military. The Veteran also indicated that he was obsessive about cleanliness and became angry with his children if their house became dirty or disorganized. The Board finds that although the asserted obsessive behavior may be out of the ordinary, there is no indication that it rose to a level which interfered with the Veteran’s routine activities. The record further reflects that the Veteran experienced chronic anxiety and symptoms of depression prior to November 2, 2014. At a March 2010 VA examination, the Veteran claimed that he was anxious approximately 75 percent of the time, and the record consistently indicates that he experienced anxiety attacks multiple times per week. The Veteran also indicated on multiple occasions that he was frequently depressed and that he would often struggle to find motivation to perform activities or get out of bed. However, the record indicates that he maintained full-time employment throughout the relevant period, even though he displayed difficulty in adapting to stressful circumstances at work, and he was never noted to have difficulty performing his activities of daily living. Further, although a November 2010 VA examination stated that the Veteran’s wife handled their finances due to his difficulties with concentration and forgetfulness, the record generally indicates that he could handle his finances independently if the need arose and he was never noted to be incapable of doing so. Accordingly, the record does not reflect that the Veteran’s anxiety and depression affected his ability to function independently, appropriately, and effectively. The record also indicates that the Veteran experienced some degree of impulse control related to his anxiety disorder, and at times lashed out verbally due to his irritability and anger problems. However, there is no indication that the Veteran ever became physically violent during any such instances, or that he was disciplined at work or had any legal action taken against him due to his behavior. Further, the record indicates that such outbursts were not unprovoked and occurred during periods where the Veteran encountered stressful situations, such as disagreements with co-workers or phone calls with VA personnel concerning his treatment and pending claims. The Veteran was consistently noted to be socially withdrawn and the record indicates that he did not have any significant relationships with others outside of his family. However, the record also indicates that he had a good relationship with his wife and that, although he was noted to have some difficulties in interacting with his children and they called him mean, the record reflects that he maintained positive relationships with the children who lived with them. While the evidence of record indicates the Veteran did not take part in outside activities frequently with his children, it does indicate that he occasionally participated in events such as going to the park or to watch his son’s basketball game. The record further indicates that the Veteran generally got along well with his siblings, being described by his brother at a May 2014 VA examination as a “family man,” and he maintained contact with them throughout the relevant period. Therefore, while the Veteran had difficulty in establishing and maintaining effective work and social relationships, and was somewhat limited in relationships with his family members, he did not exhibit a complete inability to establish and maintain effective relationships. The Veteran also indicated that on occasions in August 2010, September 2010, October 2010, and November 2010, he had audiological hallucinations, stating that he sometimes heard his mother’s voice, but the record does not indicate that these manifestations were persistent or that they significantly affected the Veteran’s behavior. Further, in the November 2010 VA examination which referenced audiological hallucinations, the examiner assigned a GAF of 53, which indicates moderate symptoms overall. Additionally, although the Veteran’s thought processes were described as tangential at times, such as in a September 2012 VA social work note, he was generally noted to have clear and coherent thought processes; and although he was sometimes described as paranoid, the record does not indicate that his speech was illogical, obscure, irrelevant, or delusional. Further, there is no indication in the record that the Veteran neglected his personal appearance and hygiene or that he had spatial disorientation. There is also no indication that he had gross impairment in thought processes or communication, that he displayed grossly inappropriate behavior, that he was a persistent danger to harming himself or others, that his memory difficulties rose to the level of forgetting the names of close relatives, his own occupation, or his own name. Accordingly, the Board finds that for the period prior to November 2, 2014, the overall disability picture related to the Veteran’s service-connected anxiety disorder most nearly approximated a 50 percent disability rating, but no greater. While the Veteran did display some symptoms falling within the criteria for a higher rating, the majority of his consistently reported symptoms fell within the criteria for a 50 percent rating. 2. Entitlement to a rating in excess of 50 percent for service-connected anxiety disorder for the period since November 2, 2014 The Veteran is currently rated as 50 percent disabled for his service connected anxiety disorder for the period since November 2, 2014. The evidence of record indicates that his symptoms during this period increased in severity and that they most nearly approximated occupational and social impairment with deficiencies in most areas. In a November 2014 letter, the Veteran’s private psychologist indicated that the Veteran’s symptoms related to his anxiety disorder had increased in either severity, frequency, or duration; and that a number of new symptoms had also emerged. Of particular importance, the psychologist noted that he felt so stressed at times that he feared he might “explode” and thought about hurting others. The psychiatrist also noted that the Veteran expressed thoughts of death or suicide and a fear that his anxiety was escalating beyond control. The psychologist indicated that he had episodes of acute anxiety on most days which resulted in significant physical and mental symptoms, such as chest pain, nausea, dizziness, and feeling like he was losing control. The psychologist noted that the Veteran’s experienced increasing conflict in his relationship with his wife due to his tendency to isolate himself and avoid socializing, as well as his compulsive behaviors associated with his anxiety. The psychologist further noted that his job performance was also deteriorating due to increasing impairment from his health problems and psychological disorders, such as an inability to understand simple or detailed instructions and remember locations and work-like procedures. The examiner assigned a GAF of 34, indicating major impairment. In a December 2014 VA mental health note, the Veteran indicated that he was again experiencing audiological hallucinations of hearing his mother’s voice. He also indicated that he would get extremely mad at times and feel like killing someone. In a February 2016 VA examination, the Veteran reported having problems with uncontrollable worry about a variety of topics and the examiner noted an increase in severity of his symptoms since his prior VA examinations. The examiner noted that the Veteran was distanced from his family and, although he had a good relationship with his wife, he had substantial difficulty in dealing with his irritability when interacting with his children. The Veteran indicated that he was having problems with concentration and memory at work, as well as a lack of trust with people in his work environment and outburst of anger at other people at his job. The Veteran indicated he was experiencing many problems at work and that he had filed an EEO claim. During the examination, the Veteran’s wife also provided statements that he experienced insomnia to the point that he would not sleep for multiple days and that he was frequently “groggy and out of sorts.” She further stated that he did not spend times with friends and on the rare occasions where she could get him to go to a social event he did not like other people to look at him, and did best when she stayed with him the entire time. The Veteran also indicated that his relationship with his siblings had declined and that they were “not as close as we should be.” The examiner noted that the Veteran claimed he would often stay in bed on the weekends and that he had difficulty taking care of his health due to his low energy level. The Veteran reported that he had uncontrollable worrying about a variety of issues that affected both his work and private life. The examiner listed symptoms including suspiciousness; chronic sleep impairment; memory loss; such as forgetting names, directions, or recent events; difficulty establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The examiner noted that the Veteran did not experience any audiological or visual hallucinations and assigned a GAF of 50, indicating serious symptoms. In a November 2017 VA examination, the examiner noted ongoing symptoms including, depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances. The Veteran indicated that he retired from his previous employment with VA in March 2016, but he felt that he was forced to retire or quit as part of his EEO claim settlement. The examiner stated that her impression of the Veteran’s condition was consistent with that of the previous evaluator in 2016. The examiner indicated that there appeared to be minimal change in his overall symptoms since the 2016 examination. Accordingly, the Board finds that an increased rating of 70 percent is warranted for the period since November 2, 2014. Both the Veteran’s private psychologist and VA examiners noted an increase in the severity of the Veteran’s symptoms, and GAF scores during this period, by both private and VA professionals, fall in the criteria for a score reflecting serious to severe symptoms. Additionally, the Veteran felt that he was forced to retire from his employment with VA due to his EEO claim, and had not obtained employment since that time. The record reflects that the Veteran’s ability to establish and maintain effective relationships within his family worsened since November 2, 2014, and his near-continuous panic and obsessive behavior increasingly interfered with his life at home. Although the Veteran’s symptoms related to his service-connected anxiety disorder increased in severity during the relevant period, there is no indication that the rose to a level which resulted in total occupational and social impairment. While the Veteran did report an audiological hallucination at a December 2014 VA treatment session, there is no indication his hallucinations were persistent. Additionally, although the Veteran reported feeling like he wanted to harm others, on one occasion stating he felt like killing someone, there is no indication that he acted on such feelings and was an actual danger to himself or others. Accordingly, the Board finds that a rating of 70 percent, but no greater, is warranted. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that he is unemployable due to his service-connected disabilities. VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age. 38 C.F.R. § 3.341 (a), see also 38 C.F.R. § 4.19. The Veteran meets the schedular criteria for an award of TDIU as of November 2, 2014. He is in receipt of a combined evaluation of at least 70 percent for his service-connected disabilities from that time; and has a single service-connected disability rated at 40 percent or higher. The record further indicates that, in association an EEO claim settlement, the Veteran retired in March 2016 from his most recent employment working in housekeeping at a VA medical center. There is no indication that the Veteran has been able to obtain substantially gainful employment since that time. The medical evidence of record indicates that the Veteran’s service-connected disabilities impact his ability to work. As detailed above, the Veteran’s service-connected anxiety disorder, and associated sleep difficulties, affects his ability to concentrate and remember to perform tasks related to his occupation, as well as his ability to get along with co-workers and supervisors. Further, the evidence of record indicates that the Veteran’s service-connected headache disorder additionally impairs his ability to work on a regular basis. VA treatment records note that the Veteran reports experiencing migraine and/or cluster headaches on a daily basis. The record also indicates that the Veteran missed an increasing number of work days as his symptoms related to his service-connected disabilities worsened. Further, a July 2017 opinion from the Veteran’s private psychologist stated that due to the combined effects of his sleep difficulties and the side-effects from the medication he takes for his service-connected disabilities, working in positions similar to those he previously worked in were now beyond his capacity. The psychologist further opined that performing adequately in any work situation was impossible due to the Veteran’s significant limitations related to his insomnia and substantially limited rest. Based upon the Veteran’s statements and the information received concerning his past employment, the Board finds that the preponderance of the evidence supports a finding for entitlement to a TDIU. The medical evidence of record, considered in conjunction with the Veteran’s vocational and educational history, indicates that his physiological and psychological service-connected disabilities significantly interfere with his ability to perform both physical and sedentary tasks. Although the Veteran is also limited by disabilities which are not service connected, his symptoms associated with his service-connected disabilities are independently severe enough to render him unable to obtain and maintain substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel