Citation Nr: 18151042 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-31 683 DATE: November 16, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disability is denied. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a heart disability, to include ischemic heart disease, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s acquired psychiatric disability at most, is manifest by symptoms of frequency, severity, or duration most similar to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; it is not manifest by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9432. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disability Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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 the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily , with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent evaluation is warranted if the evidence establishes 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; and difficulty in establishing and maintaining effective work or social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability 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. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are 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). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). 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-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 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 Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. The Veteran is currently assigned a 30 percent disability rating, effective August 27, 2013, for other specified trauma and stressor-related disorder under Diagnostic Code (DC) 9432. An April 2014 VA examination shows that the Veteran was diagnosed with other specified trauma and stressor-related disorder. The Veteran reported that he lived with his wife of 44 years and described his marriage as good. He indicated that he has 3 adult children and 8 grandchildren, and he has a good relationship with all of them. The Veteran reported that he enjoys spending time with his grandchildren and going to sporting events. He further reported that he socializes mainly with family and he avoids crowds. He stated that he has not enjoyed playing golf in the past 5 years because he has a lack of energy and it is too hot. The Veteran reported that he was prescribed medication (antidepressants) by his primary care physician; however, he has never engaged in any type of therapy. The examiner noted that the Veteran’s acquired psychiatric disability was manifest by chronic sleep disturbances, nightmares, startle response, avoidance of crowds, anger, irritability, anxiety, depression, and feelings of guilt. The examiner determined that the Veteran has social and occupational 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 medication. The Board notes that although in the June 2016 Form 9, the Veteran’s representative contends that the “the reason for the continuation of the 30 percent rating is not informative as to what symptomatology was complained of and what was reported.” Careful review of the evidence, however, reflects that it is adequate to determine the severity of the Veteran’s acquired psychiatric disability as the April 2014 VA examination adequately noted the Veteran’s contentions, social and occupational history, and evaluated his symptoms. Furthermore, as indicated during the April 2014 VA examination, the Veteran does not receive treatment for his psychiatric disability (and never has); therefore, there are not any identified outstanding medical evidence relevant to this issue. After review of the record, the Board finds that a rating higher than 30 percent is not warranted. The April 2014 VA examination does not indicate that the Veteran experiences occupational and social impairment with reduced reliability and productivity, as contemplated by a 50 percent rating. The Veteran has not demonstrated 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work or social relationships. Notably, the Veteran reports having a good relationship with his family (wife, children, grandchildren), and socializing at sporting events. The Board has considered the functional impact of all symptoms noted in the record. The disability picture reflected in the record does not show social and occupational impairment beyond that contemplated by the current 30 percent rating. Therefore, the Board finds that an initial disability rating in excess of 30 percent for the Veteran’s service-connected acquired psychiatric disorder is not warranted. 38 C.F.R. § 4.130, DC 9432. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran contends that service connection is warranted for his bilateral pes planus. The Board has expanded this issue as there is evidence of a disability other than pes planus related to service or to a service-connected disability. Although the Veteran was afforded a VA examination in June 2015, the provided opinion is not adequate. In this regard, the VA examiner noted the Veteran’s pre-existing bilateral pes planus and the multiple in-service treatment for bilateral pes planus and opined that it was not aggravated by service; however, the examiner did not provide adequate supporting rationale for his opinion that bilateral pes planus was not aggravated beyond its natural progression in service. Additionally, the examiner noted that the Veteran’s bilateral foot pain could “also be related to his diabetes.” Upon remand, this statement should be as the Veteran is service-connected for diabetes mellitus and peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for a heart disability, to include ischemic heart disease is remanded. Remand is required for the issue of entitlement to service connection for a heart disability as there appear to be outstanding medical records. In this regard, although on the June 2016 Form 9 (and a previously submitted March 2015 letter), the Veteran’s representative noted that the Veteran underwent heart surgery in February 2015, VA has not obtained these records. These records are pertinent to the adjudication of this issue; therefore, they should be obtained and a VA examination should be scheduled. Furthermore, the Veteran is service-connected for diabetes mellitus, therefore an opinion regarding the relationship, if any, between diabetes mellitus and any diagnosed heart disability should be obtained. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The issue of entitlement to TDIU is inextricably intertwined with the issues of entitlement to service connection for bilateral pes planus and a heart disability; therefore, a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. If any requested records are not available, the AOJ should clearly document the claims file to that effect and notify the Veteran of any inability to obtain the records, in accordance with 38 C.F.R. § 3.159 (e). 3. Upon completion of directives #1 and #2, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any current bilateral foot disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. a) The examiner should state whether the Veteran’s pre-existing bilateral moderate pes planus, which was noted on his induction examination, increased in severity during active service. b) If the examiner finds that the Veteran’s preexisting bilateral pes planus increased in severity during active service, opine whether any increase clearly and unmistakably was not due to the natural progress of the disability. In rendering the opinions, the examiner should discuss the in-service treatment for bilateral pes planus in (i) January 1967; (ii) August 1967; and (iii) the three separate times in September 1967. The examiner should also discuss the relationship, if any, between the Veteran’s bilateral foot pain and his service-connected diabetes mellitus and peripheral neuropathy. In this regard, is there a foot disability caused or aggravated by the service-connected diabetes. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Upon completion of directives #1 and #2, schedule the Veteran for a VA examination to ascertain the nature and likely etiology of any heart disability found. The examiner should review the claims file and note that review in the report. All indicated tests should then be performed. (a.) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that any heart disability is had its onset during active service; otherwise originated during active service; or is related to any incident of service, to include confirmed herbicide exposure. (b.) If it is determined that a heart disability was not incurred in service, then the examiner should state whether it is at least as likely as not that any heart disability was caused or aggravated (worsened beyond the natural progress of the disease) by the service-connected diabetes mellitus. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel