Citation Nr: 18156704 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 17-29 642 DATE: December 10, 2018 ORDER Entitlement to an initial rating in excess of 20 percent for urinary incontinence is denied. Entitlement to a rating in excess of 40 percent from February 11, 2013, for urinary incontinence is granted. Entitlement to an initial rating in excess of 10 percent for hypothyroidism is granted. Entitlement to an initial rating in excess of 30 percent for anxiety disorder for the period prior to February 11, 2013, is denied. Entitlement to a rating in excess of 50 percent from February 11, 2013, for anxiety disorder is denied. FINDINGS OF FACT 1. For the period prior to February 11, 2013, the Veteran’s urinary incontinence caused daytime voiding in intervals between one and two hours. 2. For the period from February 11, 2013, the Veteran’s urinary incontinence required the wearing of absorbent material which must be changed more than four times per day. 3. For the period on appeal, the Veteran’s hypothyroidism was manifested by fatigue, mental sluggishness, and weight gain. 4. For the period prior to February 11, 2013, the Veteran’s general anxiety disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 5. For the period from February 11, 2013, the Veteran’s general anxiety disorder was manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. For the period prior to February 11, 2013, the criteria for a rating in excess of 20 percent for urinary incontinence have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.115(a), Diagnostic Code 7542 (2018). 2. For the period from February 11, 2013, the criteria for a rating in excess of 40 percent for urinary incontinence have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.115(a), Diagnostic Code 7542 (2018). 3. The criteria for a rating in excess of 10 percent for hypothyroidism have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119, Diagnostic Code 7903 (2018). 4. For the period prior to February 11, 2013, the criteria for general anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.10, 4.130, Diagnostic Code 9400 (2018). 5. For the period from February 11, 2013, the criteria for general anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.10, 4.130, Diagnostic Code 9400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1982 to May 1984, from May 1984 to January 1989, and from February 1989 to December 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As an initial matter, the Board notes that the issues related to the Veteran’s left hand, right hand, sleep apnea, degenerative arthritis of the cervical spine, degenerative arthritis of the lumbar spine, and skin were not included on the Veteran’s VA Form 9, and as such were not certified for appeal. Accordingly, these issues are not currently before the Board. Additionally, following certification of the Veteran’s appeals to the Board, in August 2016, the RO increased the Veteran’s disability rating for his anxiety disorder to 50 percent, and urinary incontinence to the maximum schedular rating of 40 percent for urinary frequency. An appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulation, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2016, the Veteran submitted an argument that he was entitled to a higher disability rating for his urinary incontinence for voiding dysfunction, which offers a higher disability rating. Accordingly, as higher disability ratings are available for these claims, the Veteran was not awarded a full grant of the benefits sought on appeal, and these claims remain in controversy. The Veterans Claims Assistance Act of 2000 (VCAA) outlines procedural assistance VA must provide to claimants in certain cases. If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. The Veteran filed his claim as part of the VA pre-discharge program prior to separation from service. In November 2011, the Veteran signed a Notice Acknowledgement and Response for the Benefits Delivery at Discharge Program. Thus, VA’s duty to notify was satisfied. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016). With regard to the duty to assist, although the Veteran was not afforded a new VA examination for his hypothyroidism claim, the Board finds that an examination is not necessary in this instance because the Veteran has not alleged his hypothyroidism has worsened in severity since his previous examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Rather, his claim includes the same reported symptoms that were noted in his pre-discharge examination. Additionally, the Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. See also 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Urinary incontinence The Veteran contends that his urinary incontinence has gotten worse because it now requires the use of absorbent material. The Veteran was in receipt of a 20 percent disability rating prior to February 11, 2013, and a 40 percent disability rating from February 11, 2013 for his urinary incontinence under Diagnostic Code (DC) 7542. Voiding dysfunction is to be rated as urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. With continual urine leakage, post-surgical urinary diversion, urinary incontinence or stress incontinence, a 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. Urinary incontinence or leakage requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating. Urinary incontinence or leakage requiring the use of an appliance or the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a. In cases of urinary frequency, a 20 percent rating is assigned for a daytime voiding interval between one and two hours, or awakening to void three to four times per night. A maximum 40 percent schedular evaluation is assigned in cases of a daytime voiding interval of less than one hour, or awakening to void five or more times per night. Id. The Veteran was afforded a pre-discharge examination in November 2011, in which he received a diagnosis of urinary incontinence. The Veteran reported that he experienced symptoms of back pain, dyspnea, fatigue, lower abdominal pain, angina, lethargy, and weakness. He also indicated that his daytime voiding was once every hour and nighttime voiding was also once every hour. Additionally, the Veteran reported difficulty starting a stream, a weak and intermittent stream, straining, and dribbling. In June 2016, the Veteran underwent another VA examination, in which he received a diagnosis of benign prostatic hyperplasia. The examination notes that the Veteran had a voiding dysfunction that required the use of diapers that needed to be changed 6 times a day. The examiner also indicated that the Veteran experienced increased urinary frequency, voiding in intervals of less than one hour during the day and awakening to void 3 to 4 times during the night. The examiner noted that the Veteran’s voiding dysfunction caused signs or symptoms of obstructed voiding, including hesitancy, weak stream, and decreased force of stream. The examination indicates that severe incontinence caused by obstruction impacts his ability to work. The available post-service medical treatment records are silent for any complaints or treatment of urinary incontinence. After a review of the evidence, the Board finds that for the period prior to February 11, 2013, the Veteran’s symptoms more closely approximate a 20 percent disability rating. The Veteran’s November 2011 pre-discharge examination notes that the Veteran experienced daytime and nighttime voiding at intervals of once per hour. A higher rating is not warranted under urinary frequency unless the Veteran experienced daytime voiding in intervals of less than once per hour, or awakening to void three to four times per night. 38 C.F.R. § 4.115a. The Board has considered other genitourinary system dysfunction codes and finds that a separate rating is not warranted. Although the November 2011 pre-discharge examination suggests that the Veteran had obstructive voiding, the record does not demonstrate that the Veteran required intermittent ot continual catheterization to warrant a higher scheduler rating of 30 percent. 38 C.F.R. § 4.115a. Moreover, there is no indication in the record that the Veteran required the use of absorbent material prior to February 11, 2013, to warrant a separate or higher rating under voiding dysfunction. Compare 38 C.F.R. § 4.14. Thus, all potentially applicable codes have been considered, and a separate or higher schedular rating is not warranted for urinary incontinence. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). For the period from February 11, 2013, the Board finds that a 60 percent disability rating is warranted for the Veteran’s urinary incontinence. The June 2016 examination indicates that the Veteran’s voiding dysfunction required the use of absorbent material, diapers, which require changing more than four times a day. Although the Veteran had previously been rated at the maximum disability rating under urinary frequency, the Board finds that a higher rating is available based on voiding dysfunction. A 60 percent disability rating is the maximum schedular rating for voiding dysfunction under DC 7542. 38 C.F.R. § 4.115a. 2. Hypothyroidism The Veteran contends that he is entitled to a higher rating for his hypothyroidism. Specifically, he asserts that due to his hypothyroidism, he is constantly tired, lacking energy, mentally sluggish, and he has gained 20 pounds over the past year. The Veteran is currently assigned a 10 percent disability rating, effective January 1, 2012, under DC 7903. Hypothyroidism is rated under Diagnostic Code 7903. 38 C.F.R. § 4.119 (2018); Copeland v McDonald, 27 Vet. App. 333 (2015). Under Diagnostic Code 7903, a 10 percent rating is assigned when hypothyroidism is manifested by fatigability, or continuous medication is required for control. A 30 percent rating requires fatigability, constipation, and mental sluggishness. A 60 percent rating requires muscular weakness, mental disturbance, and weight gain. A 100 percent rating requires cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. Id. The Veteran’s pre-discharge examination in November 2011, provided a diagnosis of hypothyroidism. The Veteran reported experiencing fatigability, emotional instability, depression, poor memory, and difficulty breathing. The examination notes that these symptoms caused the Veteran to experience constant fatigue, depression, weight gain, and slow memory. The examiner indicated that the Veteran gained ten pounds over the preceding 24 months and was on medication for his disorder. The available post-service medical treatment records are silent for any complaints or treatment of hypothyroidism. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s symptoms for hypothyroidism more closely approximate a 60 percent disability rating due to his fatigue, mental sluggishness, and weight gain for the period on appeal. 38 C.F.R. § 4.119, DC 7903. A 100 percent rating is not warranted because there is no indication in the record that the Veteran has cold intolerance, muscle weakness, cardiovascular involvement, or bradycardia. Id. 3. Anxiety disorder The Veteran asserts that a higher rating is warranted for his anxiety disorder because he feels more withdrawn, and his short-term memory has been affected due to his disability. The Veteran is currently assigned a disability rating of 30 percent prior to February 11, 2013, and 50 percent from February 11, 2013, for his anxiety disorder under DC 9400. 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). Diagnostic Code 9400 provides compensation for general anxiety disorders under the General Formula for Rating Mental Disabilities. 38 C.F.R. § 4.130. Under that code, a 30 percent rating 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, chronic sleep impairment, and mild memory loss. Id. A 50 percent rating is provided 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; and difficulty in establishing and maintaining effective work and 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. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, 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). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (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. Post-service medical treatment records generally note the absence of anxiety, panic attacks, irritability and aggression, suicidal and homicidal ideation, and depression. The records indicate that the Veteran experienced problems with sleep. The Veteran was noted as having good concentration, attention span, concentration, judgment, and memory. The records also consistently note the Veteran was well groomed. The Veteran’s November 2011 pre-discharge examination provides a diagnosis of general anxiety disorder and notes moderate symptoms of anxiety, obsessiveness, physical/mental tension, mental exhaustion, and dysphoria. The Veteran reported that his symptoms affected his daily functioning as a result of sleep deprivation. The Veteran indicated that he was able to maintain sufficient functioning and his daily activities did not change much. There was no reported history of violent behavior or suicide attempts. The Veteran noted that within the preceding year, he experienced an increased desire to isolate himself, but he indicated that he had a good relationship with his supervisor and coworkers and had not lost any time from work as a result of his symptoms. The examination notes that the Veteran’s orientation, affect and mood, communication, speech, and concentration were normal; his appearance, grooming, and hygiene were appropriate; and he did not indicate any panic attacks, suspiciousness, delusions, hallucinations, or obsessive-compulsive behavior. The examiner indicated that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The Veteran was afforded a VA examination in June 2016, in which he received diagnoses of generalized anxiety disorder and other specified trauma and stressor related disorder. The examination notes symptoms of depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, mild memory-loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The examiner indicated that the Veteran had occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. During the examination, the Veteran reported that he had a few friends but tended to keep to himself. He was employed full-time and was friendly with the people he saw at work. He indicated that he did not have family, and he was closest with his wife. The Veteran noted that he spent his free time at home, watching television. The Veteran indicated he was uncomfortable and anxious in congested areas and avoided these situations; he endorsed frequent worry thoughts and problems with sleep. The Veteran reported low mood, energy, and motivation. The examination notes there were mild problems with short-term memory. The Veteran denied irritability. No significant exaggerated startle response, significant hypervigilance, or suicidal or homicidal ideation was reported. The Veteran submitted a statement, accompanying his VA Form 9, in September 2016, indicating that he was obsessed with his daily schedule and any deviation caused excessive panic attacks. He noted that his speech would wander at times in an incoherent pattern and he had dark thoughts. He also indicated that he experienced near continuous panic attacks, which were triggered by a break in his routine, stress, crowds, heavy traffic, loud noises, and startling noises or actions. The Veteran noted that he had continuous depression, grinding teeth, difficulty adapting to stressful circumstances, the inability to establish and maintain effective relationships, and loss of interest and inability to engage in sexual relations with his wife. Additionally, the Veteran indicated that he would go 3 to 4 days without showering and only changed his clothes once a week. Based on a review of the evidence, the Board finds that a rating in excess of 30 percent prior to February 11, 2013, and in excess of 50 percent from February 11, 2013, is not warranted. The Board acknowledges that the Veteran has claimed that he experienced near continuous panic attacks, occasional problems with speech and thoughts, continuous depression, inability to establish and maintain relationships, and neglect of personal appearance and hygiene. However, the medical evidence of record does not support these assertions. Rather, post-service medical treatment records indicate that the Veteran did not experience panic attacks; his speech and thought processes were reported as normal; and his grooming was consistently noted as good. Moreover, the VA examinations indicate no problems with speech or thought processes, grooming, or hygiene; although panic attacks are noted on the June 2016, VA examination, the examiner indicated that his panic attacks occurred weekly or less. Accordingly, the Board finds that the medical evidence is the most probative evidence of record. For the period prior to February 11, 2013, the probative evidence of record reflects that the Veteran experienced symptoms of depression, anxiety, isolation, chronic sleep impairment, and mild memory loss. A 50 percent disability rating is not warranted because the evidence does not indicate that the Veteran had flattened effect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. 38 C.F.R. § 4.130, DC 9400. For the period from February 11, 2013, the probative evidence of record indicates that the Veteran experienced symptoms of depression, anxiety, isolation, chronic sleep impairment, difficulty establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, and mild memory loss. A 70 percent disability rating is not warranted for this period because the Veteran does not have symptoms of suicidal ideations; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; or the inability to establish and maintain effective relationships. Id. The Board notes that while there are symptoms of isolation present in the record, this does not rise to the level of an inability to establish relationships. The record reflects that, at the time of his June 2016 VA examination, the Veteran was married and living with his wife of 9 years, and he was friendly with people at work. (Continued on the next page)   Therefore, for the period from February 11, 2013, the Veteran has not demonstrated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood, warranting a 70 percent disability rating. The Veteran indicated that he worked full-time as a staff officer, and he denied any significant problems or issues at work. The only indication that his general anxiety disorder caused occupational or social impairment was as it related to his fatigue due to sleep impairment and discomfort with crowds. Based on the foregoing, the Board finds that a disability rating in excess of 50 percent for the period from February 11, 2013 is not warranted. 38 C.F.R. § 4.130, DC 9400. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel