Citation Nr: 18153707 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 17-41 315 DATE: November 28, 2018 ORDER Entitlement to a disability rating of 50 percent, but no higher, from December 30, 2013 to May 31, 2015 (exclusive of any temporary total evaluations) for schizoaffective disorder with panic disorder is granted. Entitlement to an effective date earlier than December 10, 2013, for the award of a temporary 100 percent rating for hospitalization over 21 days is denied. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s schizoaffective disorder with panic disorder was manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran was not continuously hospitalized for a period of 21 days or more for a service-connected disability until his admission on December 10, 2013. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for schizoaffective disorder with panic disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.130, Diagnostic Code 9211 (2018). 2. The criteria for an effective date prior to December 10, 2013 for the payment of temporary total benefits under the provisions of 38 C.F.R. § 4.29 have not been met. 38 U.S.C. § 1156(a)(C) (2012); 38 C.F.R. § 4.29 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1986 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. As best the Board can discern based on the Veteran’s numerous submissions, including December 30, 2013, October 2014, May 2015, July 2015, and August 2015, the Veteran contends that his panic symptoms were attributable to his service-connected psychiatric disorder, warranting an increased disability evaluation. The RO appears to have treated service connection for panic disorder and entitlement to an increased rating for schizoaffective disorder as separate issues until the July 2015 rating decision. The issue certified to the Board was for an earlier effective date prior to May 31, 2015 for the Veteran’s service-connected schizoaffective disorder with panic disorder. However, the Board has recharacterized the issue as a claim for an increased rating for the Veteran’s psychiatric disorder, which stems from the March 2015 rating decision. Given the Veteran’s assertions and the evidence of record, no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained. The Veteran was provided VA examinations, the reports of which are adequate for the purpose of evaluating the proper disability rating. The Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating 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 when a mental disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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, and 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. Entitlement to an increased rating for schizoaffective disorder with panic disorder The Veteran contends that he is entitled to an effective date earlier than May 31, 2015 for his schizoaffective disorder with panic disorder. Specifically, in his notice of disagreement, he asserts that the effective date for the 100 percent disability rating should be December 1, 2013 because he received a diagnosis for his panic attacks on December 3, 2013. Additionally, The Veteran set forth a detailed argument in his VA Form 9, indicating, in pertinent part, that he received a diagnosis for panic disorder prior to his hospitalization for alcohol detoxification, at which time he was treated with medication that stabilized his panic symptoms. The Veteran contends that his symptoms were present, severe, and consistent from the onset of his panic disorder. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a) (2012). As such, the earliest effective date of the Veteran’s rating evaluation is December 30, 2013, the date of his claim for an increased rating for his psychiatric disorder. The Veteran was in receipt of a 10 percent disability rating from November 10, 1987, a 30 percent rating from July 27, 1989, a temporary 100 percent rating from December 10, 2013, a 30 percent disability rating from February 1, 2014, and a 100 percent rating from May 31, 2015, for his psychiatric disability. Medical treatment records reflect that the Veteran reported symptoms of panic attacks, accompanied by auditory hallucinations; anxiety; difficulty sleeping; depression; and social isolation. However, for the period on appeal, the medical treatment records generally indicate that, while the Veteran’s symptoms wax and wane, there was overall improvement regarding his symptoms of anxiety and panic with prescribed medication. The treatment records further reflect occasional symptoms of irritability, nightmares, and paranoia. A January 2014 treatment note indicates that the Veteran had a remote history of psychosis in the military, the symptoms of which had not returned since that time because they were likely related to substance abuse. The note also indicates that the Veteran’s cognition and ability to handle work had never declined, but he endorsed symptoms of depression; low energy; irritability; and poor focus, concentration, and sleep. The record notes that the Veteran experienced panic attacks that were controlled with medication. The Veteran denied any hallucinations. An April 2014 treatment record indicates that the Veteran reported that his panic attacks were less frequent and less intense. The note also indicates that, while the Veteran was feeling better, he had not returned to work and did not appear to be planning to return to work. A June 2014 record indicates that the Veteran was no longer experiencing panic attacks, though he reported periods of anxiety, sleep disturbances, depressed mood, anhedonia, fatigue, and difficulty concentrating. The Veteran’s speech was normal, affect was euthymic, insight and judgement were good, and impulse control was good. A separate June 2014 treatment record notes that the Veteran had made friends and was going to social events, which the provider indicated demonstrated improvement in the Veteran’s symptoms. An April 2015 treatment record indicates that the Veteran had occasional panic attacks and struggled with anxiety every day. The Veteran also reported low mood, impaired sleep, occasional nightmares, some hypnogogic hallucinations, decreased motivation and energy, and isolation. The Veteran’s speech was reported as normal, affect was blunted, thought process was logical and goal-directed, insight and judgment were fair. The Veteran indicated experiencing mild paranoia and feelings of premonition. A statement submitted by the Veteran’s treating psychiatrist, dated in May 2015, notes diagnoses of anxiety and psychotic disorder. The statement indicates that the Veteran had not had any recent frank psychotic episodes, but he indicated some symptoms and experiences consistent with a mild psychosis. The psychiatrist indicated that the Veteran felt premonitions, experienced intermittent auditory hallucinations, felt a sense of interconnectedness, and occasionally experienced mild paranoia which appeared to underlie his symptoms of anxiety. Moreover, the psychiatrist noted that the Veteran was concerned with the stigma associated with a diagnosis of schizophrenia, and, in his opinion, the Veteran’s current symptoms did not fit the criteria for schizophrenia. In a March 2014 VA examination, the Veteran received diagnoses of moderate panic disorder, recurrent major depressive disorder, and moderate alcohol use disorder in remission. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. The examination report reflects that the Veteran had symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty establishing and maintaining effective relationships; and difficulty adapting to stressful circumstances. The Veteran denied experiencing nightmares, hallucinations, and delusions. He also denied current suicidal or homicidal ideation. The examination notes that the Veteran maintains a sporadic relationship with his siblings and mother but indicated that he had a good relationship with his wife and a great relationship with his daughter. The Veteran described having cordial relationships with his step-children. He also indicated that he had one close friend from childhood. The Veteran reported experiencing racing thoughts which affected his ability to concentrate. He also indicated that he experienced panic attacks approximately five times a day, which have grown in intensity over the past year. The examiner indicated that the Veteran was clean, casually dressed, and cooperative. He often derailed in conversation but was easily redirected. His speech was normal, and his thoughts were goal oriented with no evidence of a thought disorder. The Veteran’s judgment was noted as good and his insight was fair. The Veteran underwent another VA examination in March 2015, in which he received a diagnosis of panic disorder. The examiner indicated 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’s symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation or mood; difficulty establishing and maintaining effective relationships; and difficulty adapting to stressful circumstances, including work or a worklike setting. The Veteran reported that his relationship with his mother was strained, and his relationship with his wife was “just there.” He reported that he had a good friend that he saw on some weekends, but he reported he did not have close friends because he had trouble with “tight bonds.” The Veteran indicated that he enjoys spending time on the computer and attends support groups regularly. The Veteran reported experiencing anxiety daily, which results in a panic attacks almost daily. The examiner noted that the Veteran was casually dressed with fair grooming and hygiene, and he was alert and oriented with a good attention span. The examination also notes that his speech was normal, and his thought process was goal directed, devoid of any suicidal or homicidal ideations and frank hallucinations or delusions. The examiner indicated that the Veteran’s symptoms met the criteria for panic disorder and not schizophrenia or schizoaffective disorder, noting that the Veteran’s treatment records reflected a similar diagnosis. The examiner indicated that the Veteran’s previous schizophrenia diagnosis was considered to be related to his substance abuse, and he did not endorse any symptoms attributed to schizophrenia or schizoaffective disorder since he stopped drinking alcohol two years prior. The examiner noted that the Veteran had mood and thought related symptoms but these symptoms did not affect his ability to function as the panic attacks appeared to do. After a review of the evidence, the Board finds the Veteran’s psychiatric symptoms more nearly approximate the symptoms considered by a 50 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9211. Specifically, due to the Veteran’s near continuous panic or depression, panic attacks more than once a week, anxiety, chronic sleep impairment, suspiciousness, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships, the Board finds that the Veteran’s symptoms result in occupational and social impairment with reduced reliability and productivity. See Id. In so concluding, the Board finds particularly persuasive the Veteran’s ongoing VA psychiatric treatment and consistently reported symptoms of panic attacks, depression, anxiety, chronic sleep impairment, and poor concentration. Additionally, the Veteran indicated experiencing irritability and occasional auditory hallucinations. Therefore, the Board finds that a rating of 50 percent for the Veteran’s service-connected schizoaffective disorder with panic disorder is warranted for the period on appeal. 38 C.F.R. § 4.130, DC 9211. A higher rating of 70 percent is not warranted for the period on appeal because the Veteran has not displayed symptoms of suicidal ideation, obsessional rituals, intermittently illogical, obscure or irrelevant speech, spatial disorientation, or neglect of personal appearance and hygiene. Additionally, the record does not reflect that the Veteran is unable to establish or maintain effective relationships. The Board notes the Veteran’s contention that his symptoms of panic and anxiety have been present and consistent in severity since initial onset. Nevertheless, the record indicates that, while the Veteran experienced daily symptoms of anxiety, his panic attacks were better controlled on medication. Additionally, although the record reflects that the Veteran experienced occasional auditory hallucinations, the severity, duration, and frequency of these episodes are not sufficient to warrant a higher rating. Therefore, the Veteran’s disability picture more closely reflects that of a 50 percent disability rating for the period from December 30, 2013 to May 31, 2015. While the Board acknowledges that the Veteran took leave from work in the latter part of 2013, the evidence of record does not support that the Veteran was unable to work. Moreover, despite the Veteran’s assertion that his panic symptoms worsened in September 2013, which caused him to take leave from work, a medical treatment note in January 2014 indicates that his ability to handle work had not declined. Additionally, the Veteran requested a letter from his physician indicating that his anxiety was directly related to work; his physician responded that he would provide a letter indicating that his anxiety began after he had a panic attack at work but that he was unable to establish that work was a direct cause. The record does not indicate that that the Veteran has experienced all of the symptoms associated with a 50 percent rating for his psychiatric disorder. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment sufficient to warrant a 50 percent rating even though all of the specific symptoms listed for this evaluation are not manifested. Effective Date Under 38 C.F.R. § 4.29, a temporary total rating is assigned when it is shown that a service-connected disability has required hospital treatment in a VA or VA-approved hospital for a period in excess of 21 days. This increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29(a). In addition, on these total ratings, Department of Veterans Affairs regulations governing effective dates for increased benefits will control. 38 C.F.R. § 4.29(d). Entitlement to an effective date earlier than December 10, 2013. The Veteran contends that he is entitled to an effective date earlier than December 10, 2013. Specifically, he asserts that the effective date for the 100 percent rating should be December 1, 2013. The record indicates that the Veteran presented to the emergency department on December 3, 2013 acutely intoxicated and requesting detoxification or rehabilitation. He was admitted to a VA alcohol detoxification program on December 3, 2013 and discharged on December 5, 2013. The Veteran was then admitted to a VA facility on December 10, 2013 for treatment related to his psychiatric disorder; he was discharged on December 31, 2013. The Veteran was not continuously hospitalized for a period of 21 days or more for a service-connected disability until his admission to the VA facility on December 10, 2013. Thus, the Board finds that entitlement to an effective date earlier than December 10, 2013, for a payment based on a temporary total rating pursuant to 38 C.F.R. § 4.29 is not warranted. The facts in this case are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board finds that the effective date of a temporary 100 percent evaluation for hospitalization of a service-connected disability in excess of 21 days, effective December 10, 2013, is proper. (Continued on the next page)   Accordingly, the claim of entitlement to a total temporary rating for hospitalization under the provisions of 38 C.F.R. § 4.29 prior to December 10, 2013 is denied. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel