Citation Nr: 18159632 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-36 575 DATE: December 19, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for anxiety with bereavement features is denied. REMANDED Service connection for lower back pain is remanded. FINDING OF FACT Since June 2014, the Veteran’s anxiety disorder has manifested at various points in time by symptoms of irritability, depressed mood, sleep impairment, social isolation, intrusive thoughts, and anxiety. These symptoms demonstrate occasional occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for anxiety disorder has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from October 1986 to October 1990. Since separating from the Navy, he has had a career as a firefighter and is currently in a supervisory role as a lieutenant fireman. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision denying service connection for lower back pain and granting 10 percent disability for an unspecified anxiety disorder (Diagnostic Code 9413). After the timely filing of Notice of Disagreement (NOD), the RO partially granted the Veteran’s request for an increased rating for his anxiety by changing the initial rating to 30 percent effective June 2014. I. Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a disability, it is essential to consider a Veteran’s entire history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings should be assigned for separate periods of time if the evidence shows that a disability became more severe in stages during the period on appeal; this practice is known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must consider all pertinent medical and lay evidence when evaluating a claim for disability benefits. Lay evidence can be competent and sufficient to diagnose a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board must assess whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Use of the term “such as” in the criteria for a mental condition rating indicates that the list of symptoms that follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). This is a symptom-drive analysis and, therefore, “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. In this case, the Veteran’s acquired psychiatric disorder is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9413. Under the General Rating Formula for Mental Disorders, which includes anxiety, a 30 percent rating is warranted for “[o]ccupational 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).” This may be due to such symptoms as, for example: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A next-higher 50 percent disability rating is warranted where a mental disability results in “[o]ccupational and social impairment with reduced reliability and productivity.” This may be due to symptoms such as, for example: flattened affect, circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. II. Factual Background While serving in the Navy, the Veteran served as a first responder to a plane crash that killed several of his friends. This event has been confirmed by VA. In April 2015, the Veteran underwent an initial mental health and was diagnosed with anxiety with bereavement features. The VA examiner found that the Veteran met some but not all the criteria for a PTSD diagnosis and also found the Veteran experienced occupational and social impairment due to mild or transient symptoms of his anxiety which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. During the exam, the Veteran reported sleep disturbances more than once a month; depressed mood; chronic sleep impairment; mood swings; and recurrent intrusive thoughts. The examiner noted that the Veteran avoided external reminders of his stressor. The examiner also noted that the Veteran experienced hypervigilance and distraction from concentrating. The Veteran’s judgment was deemed “fair” and he was considered by his healthcare provider to have an affect congruent with the content of his speech, logical thought processes and no perceptual distortions. In January 2016, the Veteran was given a PTSD assessment by a VA staff psychiatrist which, according to the psychiatrist “suggested” a PTSD diagnosis. The Veteran had a total score of 54 and met DSM-IV PTSD criteria B, C, and D. The staff psychiatrist commented “In this writer’s opinion, the veteran does meet diagnostic criteria for PTSD [emphasis added].” It does not appear that any subsequent rating decisions considered this assessment. In February 2016, during outpatient treatment with his VA primary care provider, his social worker noted the Veteran was depressed, irritable, and anxious. His affect was congruent with the content of his speech at times, but at other times his affect was flat—although (due to the nature of the form on which the information is reported and the lack of clarification by the mental health care provider) the degree to which the Veteran’s affect was flat is unclear. The Veteran reported during this session that he seldom got a full night’s sleep and that he often couldn’t remember people he went to school with. He also reported snapping at his wife and children for no reason; talking in his sleep; and having nightmares of the plane crash he witnessed in the Navy. His provider also noted that the Veteran experienced an olfactory hallucination in the form of “the smell of burning” and that “the smell of people burning at work [as a firefighter]” triggered nightmares of the incident he experienced in service. Further, his provider also noted the Veteran’s hypervigilance. For example, the Veteran reported that he double checked his house three times per day to “make sure it is safe.” In April 2016, during outpatient treatment with his VA primary care provider, the Veteran reported that he was experiencing a depressed and anxious mood approximately twice a week and withdrawn behavior at times. He also reported being withdrawn and avoiding certain social situations that trigger his anxiety such as attending reunions with his Navy buddies. He also reported experiencing nightmares three times within the past fourteen days—one of which occurred during his overnight shift at the fire department (co-workers woke him up to ask him who he was fighting in his dream). He also reported experiencing “the usual stresses” associated with parenting a teenager. Overall, the Veteran’s judgment was deemed “fair” and he was considered by his healthcare provider to have an affect congruent with the content of his speech, logical thought processes and no perceptual distortions. In September 2016, the veteran’s wife reported that she started noticing a difference in her husband’s moods over the past few years, noting “[h]is moods would always change with ups and downs but more downs than ups.” She also reported that the Veteran experienced nightmares and would wake up in a state of panic, screaming and yelling as if somebody was attacking him. As a result of these nightmares, the Veterans wife indicated that the Veteran “did not get a good night’s rest and he would be disconnected from people.” From 2017 through 2018, VA medical records indicate that the Veteran continued to experience nightmares, irritability, hypervigilance, depressed mood, difficulty sleeping, and received continued treatment for his (non-service-connected) PTSD and for his (service-connected) anxiety. VA records also note that the Veteran maintained consistent employment throughout the appellate period as a career firefighter and also maintained a secondary job driving a gas truck. III. Analysis While the Board acknowledges and is sympathetic to the Veteran’s circumstances, the evidentiary record shows that the severity of the Veteran’s anxiety with bereavement features most closely approximates the 30 percent disability evaluation for the period beginning June 2014. A 50 percent evaluation is not warranted unless there is more consistently demonstrated occupational and social impairment with reduced reliability and productivity. The Board finds that both the Veteran and his wife are competent (that is, qualified) and credible to report on the Veteran’s experienced symptoms. The Board also finds their statements to be probative and supportive of the Veteran’s claim; however, a careful review of the record in its entirety, including the Veteran’s treatment records described above for the period starting June 2014, does not show evidence of symptoms comparable in severity to those listed in the rating schedule as warranting a 50 percent disability evaluation. While the Veteran clearly experiences some impairments and behaviors that have occasionally impacted his family, co-workers, and work productivity, there is no evidence on the record, when viewing it in its entirety, that this has resulted in occupational and social impairment that would warrant a higher rating of 50 percent. Overall, there is no lay or medical evidence that would allow the Board to determine that the Veteran’s psychiatric symptoms worsened significantly since his June 2014 VA examination. Therefore, the Board finds that a 30 percent evaluation is the correct evaluation for the current severity of the Veteran’s symptoms. The preponderance of the evidence is against the claim for an increased rating and, accordingly, the doctrine of equipoise (the “benefit of the doubt”) does not apply. The Board thanks the Veteran for his service both for his service to the Navy as well as his current service as a first responder and notes that this decision does not leave him without recourse. If the service-connected condition worsens in the future, the Veteran is free to submit a new claim for an increased disability rating. To award an increased rating at this time, however, would be premature. REASONS FOR REMAND Service connection for lower back pain The Board cannot make a fully-informed decision on the issue of lower back pain because no VA examiner has opined as to whether the Veteran’s lower back pain is at least as likely as not related to an in-service injury, event, or disease, including but not limited to the Veteran’s reported in-service back injury and military occupational specialty (MOS) and the repetitive motion of handing fuel hoses to refuel jets and aircrafts during his years of service. VA must provide a veteran with a medical examination and opinion when it is necessary to decide a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In addition to providing an examination, VA must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate examination requires that the examiner be fully cognizant of a veteran’s past medical history. Id. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claims so that every possible consideration is afforded. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s lower back pain. The examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease, including but not limited to the Veteran’s reported in-service back injury and military occupational specialty (MOS) involving the repetitive motion of handing fuel hoses to refuel jets and aircrafts. 2. A detailed explanation is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. B. Kucera, Associate Counsel