Citation Nr: 1806739 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-17 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a psychiatric disorder, diagnosed as panic disorder with agoraphobia and depressive disorder, not otherwise specified, rated as 30 percent disabling for the period prior to April 3, 2017, and 70 percent thereafter. 2. Entitlement to a compensable rating for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from June 1989 to June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida. In August 2016, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In February 2017, the Board remanded the current issues on appeal for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board also previously remanded the issues of entitlement to service connection for skin and left hip/thigh disabilities. However, those claims were granted by the RO in a June 2017 rating decision, and are considered resolved. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). As a final matter, the Board observes that also in the June 2017 rating decision, the RO awarded a higher 70 percent rating for the Veteran's panic disorder with agoraphobia, effective April 3, 2017. As that award did not represent a total grant of the benefits sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The issue of entitlement to a rating in excess of 10 percent for IBS for the period from October 27, 2015, is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to October 15, 2015, the Veteran's IBS was no more than mild in severity and productive of disturbances of bowel function with occasional episodes of abdominal distress. 2. From October 15, 2015, the Veteran's disability has more nearly approximated IBS of moderate severity with frequent episodes of bowel disturbance with abdominal distress. 3. Prior to April 3, 2017, the Veteran's psychiatric disability was productive of no worse than occupational and social impairment with occasional 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. 4. Since April 3, 2017, the Veteran's psychiatric disability has not been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to October 15, 2015, the criteria for a compensable disability rating for IBS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7319 (2017). 2. Effective October 15, 2015, the criteria for a 10 percent disability rating for IBS have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7319 (2017). 3. Prior to April 3, 2017, the criteria for a disability rating in excess of 30 percent for the Veteran's psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9412 (2017). 4. From April 3, 2017, the criteria for a disability rating in excess of 70 percent for the Veteran's psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9412 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). I. Irritable Bowel Syndrome (IBS) The Veteran seeks a compensable rating for her irritable bowel syndrome (IBS). Following a review of the record, the Board finds that, effective October 15, 2015, a higher 10 percent rating is warranted for moderate irritable bowel syndrome with frequent episodes of bowel disturbance with abdominal distress. In this regard, during a March 2017 VA contract examination, the Veteran reported regular diarrhea with loose stools with urgency some days. She also reported occasional constipation and bloating. The examiner found the Veteran's IBS disability to be manifested by frequent episodes of bowel disturbance with abdominal distress. The Veteran's assertions during the March 2017 examination are generally supported by private and VA treatment notes dating from October 15, 2015, which show complaints of increased gastrointestinal (GI) symptoms. The Veteran sought private emergency room treatment for abdominal pain on October 15, 2015. Thereafter, she was seen in November 2015, January 2016, and February 2016 for GI symptoms, including complaints of abdominal pain, hard bowel movements, and diarrhea. In January 2016, she reported 6-8 loose stools a day with gas and bloating, and was prescribed IBS medication. She was seen again in February 2016, at which time she reported that she had not yet tried the medication prescribed in January 2016. Nevertheless, in February 2016, she was prescribed another two-week course of anti-diarrheal medication for her IBS. Thus, given evidence of worsening IBS symptoms beginning October 15, 2015, characterized by a March 2017 VA examiner as productive of frequent episodes of bowel disturbance with abdominal distress, supporting moderate severity, the Board finds that effective October 15, 2015, a higher 10 percent rating is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2017). However, the Board finds that prior to October 25, 2015, a higher compensable rating is not warranted, as the evidence prior to that date does not support IBS of moderate severity, but rather mild IBS with disturbances of bowel function with occasional episodes of abdominal distress. In this regard, during an April 2009 pre-discharge examination, the Veteran reported episodic IBS occurring approximately once per month. The examiner observed no distress or abnormalities on examination and found the Veteran to have mild intermittent IBS, consistent with the noncompensable rating. Ongoing treatment records also show that, with limited exception, the Veteran routinely denied IBS symptoms including abdominal pain, diarrhea, and constipation. Indeed, while the Veteran did report constipation during December 2011 VA treatment, she described the constipation as intermittent. Otherwise, she affirmatively denied abdominal pain, diarrhea, constipation, and/or other GI symptoms in March 2010, August 2011, December 2011, February 2012, July 2012, October 2012, April 2013, October 2013, December 2014, and February 2015. In April 2013, the Veteran affirmatively stated that her bowel movements recently had not been abnormal. The Board also finds probative that the Veteran did affirmatively report such symptoms when present, such as constipation in December 2011, and she also positively reported various other non-IBS symptoms on review of systems, including heartburn, urinary symptoms, skin problems, and joint pain. Thus, had the Veteran actually been experiencing any of her IBS symptoms on a frequent basis, the Board finds it likely she would have reported those symptoms on review of systems during the relevant period prior to October 15, 2015. Thus, the Board finds that, prior to October 15, 2015, a compensable rating is not warranted, as the record does not show IBS of moderate severity with frequent episodes of bowel disturbance with abdominal distress. However, effective October 15, 2015, the Board finds that the criteria for a 10 percent rating are more nearly approximated and, thus, a higher 10 percent rating is warranted effective that date for IBS that is moderate in severity. The issue of entitlement to an even higher rating for IBS for the period from October 15, 2015, is addressed in the remand below. II. Psychiatric Disorder The Veteran seeks higher ratings for her service-connected panic disorder with agoraphobia than the 30 percent currently-assigned for the period prior to April 3, 2017, and the 70 percent assigned thereafter. Parenthetically, the Board observes that the most recent VA examiner found that the Veteran does not meet the criteria for a diagnosis of panic disorder, but does meet the criteria for agoraphobia as well as an unspecified depressive disorder. Following a review of the record, the Board finds that higher ratings are not warranted at any time during the period on appeal. In reaching this decision, the Board has reviewed the evidence of record, to include VA and private treatment records, VA examination reports, lay statements from the Veteran, and considered all psychiatric symptomatology. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Foremost, for the period from April 3, 2017, the evidence does not show total social and occupational impairment due to the Veteran's psychiatric symptoms during that period. Indeed, the April 2017 VA examiner did not find total social and occupational impairment, but, instead, found that that the Veteran's symptoms were productive of occupational and social impairment with reduced reliability and productivity. During that examination the Veteran reported that she was employed as a nurse, attended church every few weeks, was "okay" going to the grocery store, and cited her son as a protective factor. Even considering the Veteran's report that she cut down on her hours at work due to anxiety, the evidence does not support total social impairment. The Board also points out that impairment in occupational functioning is contemplated in her currently-assigned 70 percent rating. In any event, as the April 3, 2017, VA examination is indicative of neither total social nor total occupational impairment, a higher 100 percent rating is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9412. Similarly, clinical evidence does not support a higher rating. VA treatment notes dated after the April 2017 examination also show the Veteran to be pleasant with regard to mood and affect, and to be actively participating in her healthcare, initiating treatment and following up with VA care as directed by a private provider. Thus, those records show the Veteran to be reliable and productive, and do not otherwise support total occupational and social impairment. Absent such evidence of total occupational and social impairment, a rating in excess of 70 percent is not warranted for the period from April 3, 2017. Turning to the period prior to April 3, 2017, the Board similarly does not find that a rating in excess of the currently-assigned 30 percent is warranted, even considering the presence of symptoms listed under the criteria for higher ratings, such as fleeting suicidal ideation and panic attacks. This is because the Board finds that the impact of the Veteran's psychiatric symptoms present during that period, including depression, panic, irritability and anxiety, was no more than occasional 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); In this regard, during an April 2009 pre-discharge examination, the Veteran reported mild issues with depression and memory, moderate issues with sleep impairment and worry, and mild to moderate feelings of guilt and worthlessness. She also reported panic attacks one time per month, usually related to certain triggers including driving, going over bridges, speaking in front of people, and some social situations. Nevertheless, she reported a good relationship with her family, had several friends though many lived out of the area, was dating, and traveled often though she was somewhat limited by "panic" attacks. She was also observed to be clean, neatly groomed, appropriately dressed, cooperative, friendly, attentive, and euthymic. The examiner assigned a GAF score of 55, indicative of moderate impairment, and found the Veteran's psychiatric symptoms to be productive of occasional 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. The April 2009 examiner's findings are consistent with VA treatment notes, which show that, during the relevant period from service up until the April 3, 2017, VA examination, despite the Veteran's psychiatric symptoms including panic, the she was generally functioning well and, in fact, was quite accomplished. Indeed, during that period, the Veteran successfully completed nursing school, even reporting a 3.8 GPA in December 2010. In this regard, in February 2010, she reported that she enjoyed going to classes and learning. She also obtained full time employment as a nurse after graduation, as reported in December 2014, all while raising her son as a single mother. She also engaged in recreational activities such as reading and exercise, and she reported that she was a practicing Protestant, consistent with her reports of going to church during the April 2017 VA examination. The relevant record also shows that for part of the period on appeal, she lived with her mother and son, in addition to two other younger children, albeit with some difficulty with the "chaos" there. Nevertheless, even during such time she reported that she was able to function at school, as reported in August 2010. She further reported reliance on her family members including her mother, father, and brother in August 2011, and she also was reading a self-help book, evidencing motivation. She was also able to buy a house of her own by March 2014, and formed a new romantic relationship based on her November 2015 report of being in a monogamous relationship, whereas she reported in March 2014 that she was not dating. The Board also notes that the Veteran was able to accomplish the foregoing despite various periods of reported increased stress due to finances, child support issues, and job stress, such as reported in June 2010, September 2010, December 2011, April 2013, and December 2014. VA treatments notes further show characterization of the Veteran's psychiatric symptoms as mild to moderate. She was generally assigned a GAF score of 59 or 60, though a GAF score of 55 was assigned in August 2011, indicative of moderate impairment. On mental status examination, she was noted to be mildly dysphoric or with a mildly constricted affect, including in June 2010, August 2010, September 2010, January 2011, and July 2012. In August 2011, the Veteran described various symptoms as mild, including daily mild depressive symptoms, mild feelings of helplessness, and mild decreased motivation and energy. In April 2014, her diagnoses included mild recurrent Major Depressive Disorder. She was also routinely observed to be clean, adequately dressed and groomed; with intact attention, concentration, and memory; and to be future oriented, hopeful, and collaborative. Even during treatment unrelated to mental health, she was observed to be pleasant and/or cooperative, including in May 2013, August 2015, October 2015, and October 2016. The Board also finds probative that despite her symptoms, the Veteran was able to be productive and reliable without therapy or complaints for much of the period on appeal. In this regard, prior to April 2017, while she was seen periodically from March 2010 to August 2011, she thereafter only sought infrequent mental health treatment being seen again in May 2012, July 2012, and finally March 2014. Also noteworthy is the Veteran's August 2011 report that she had not been taking her prescribed psychiatric medications (other than alprazolam as needed) due to fears of weight gain and drowsiness. Thus, despite her symptoms, the Veteran was able to accomplish quite a bit without therapy and, at times, even regular medication. She also on occasion, such as in March 2014, acknowledged that much of her depression is likely situational, or she otherwise denied such psychiatric symptoms, including anxiety and/or depression in April 2013. She also routinely denied suicidal ideation, including in December 2011, May 2012, July 2012, October 2012, April, 2013, October 2013, April 2014, December 2014, and November 2015. The Board also points out that some of the Veteran's symptoms or limitations have been attributed to other causes. For instance, in discussing fatigue in the context of her mental health, the Veteran reported that some of her fatigue was related to her iron deficient anemia in June 2010 and September 2010. Thus, the Board finds that for the period prior to April 3, 2017, the clinical evidence shows that the impact of the Veteran's psychiatric symptoms, including her panic, was occupational and social impairment with occasional 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, consistent with the April 2009 examiner's finding, and the currently-assigned 30 percent rating. Thus, a rating in excess of 30 percent for the Veteran's psychiatric disorder for the period prior to April 4, 2017, is not warranted. (CONTINUED ON NEXT PAGE) ORDER Prior to October 15, 2015, a compensable disability rating for IBS is denied. From October 15, 2015, a 10 percent disability rating for IBS is granted. Prior to April 4, 2017, a disability rating in excess of 30 percent for the Veteran's psychiatric disability is denied. From April 4, 2017, a disability rating in excess of 70 percent for the Veteran's psychiatric disability is denied. REMAND The Board finds that additional development is necessary prior to adjudication of entitlement to a disability rating in excess of 10 percent for IBS for the period from October 15, 2015. In this regard, the evidence of record shows that in April 2017, the Veteran was scheduled to undergo a GI procedure regarding her abdominal pain and GI symptoms. However, it is unclear whether the Veteran underwent the procedure, the results of which could support entitlement to a higher rating for IBS. The Board also observes that it appears that the Veteran received private emergency treatment in April 2017 for which no records have been obtained. Thus, remand is necessary to obtain relevant outstanding treatment records dating from April 2017. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and authorize VA to obtain any outstanding private treatment records related to her IBS dating from April 2017, to include any records related to treatment at Indian River Memorial Hospital. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. Additionally, obtain updated VA treatment notes dated since April 2017, to specifically include records related to any GI procedures. 2. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim remaining on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs