Citation Nr: 1808924 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 11-11 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 10 percent for an anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to November 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2015, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing). A copy of the transcript is associated with the claims file, so is of record. This case was previously before the Board in July 2015 when it was remanded for additional development, specifically, to obtain copies of VA and private treatment records and to provide the Veteran a VA examination to determine the severity of his anxiety disorder. That additional development since has been completed, in turn allowing the Board to proceed with readjudicating this claim. When this case was previously before the Board, the issues on appeal included a claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Service connection was granted for right and left leg peripheral neuropathy in an October 2015 rating decision, constituting a full award of the benefits sought on appeal. The claim for entitlement to service connection for peripheral neuropathy is therefore no longer before the Board. FINDINGS OF FACT 1. Prior to April 15, 2012, the Veteran experienced an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his anxiety disorder. 2. From April 15, 2012 to January 2, 2014, the Veteran experienced occupational and social impairment with reduced reliability and productivity due to his anxiety disorder. 3. Since January 3, 2014, the Veteran has experienced occupational and social impairment with just relatively mild or transient symptoms due to his anxiety disorder. CONCLUSIONS OF LAW 1. Prior to April 15, 2012, the criteria for an initial 30 percent rating, but not higher, for the anxiety disorder are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9413 (2017). 2. From April 15, 2012 to January 2, 2014, the criteria for a 50 percent rating, but not higher, for the anxiety disorder are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9413. 3. Since January 3, 2014, the criteria for a 10 percent evaluation, but not higher, for the anxiety disorder are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist obligations, including in terms of assessing and reassessing the severity of this disability at issue to determine the appropriate ratings for it for all times under consideration. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran is claiming entitlement to greater compensation, so a higher rating, for hid anxiety disorder. Service connection for this disability was awarded in the February 2010 rating decision on appeal with an initial 10 percent evaluation assigned effective April 9, 2009. In written statements to VA and during his hearing testimony, the Veteran contends that a compensable initial evaluation is warranted for this anxiety disorder as he experiences symptoms of anxiety, irritability, and depression that are influenced by his service-connected cervical, lumbar, and headache disabilities. Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects a Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. If the evidence is in equipoise, meaning about evenly balanced, all reasonable doubt material to a determination will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the rating may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Indeed, this practice must be employed irrespective of whether an initial or established rating. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A disability may require re-evaluation in accordance with changes in a Veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score, which is defined by the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV) as a number between zero and 100 percent, which represents the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health illness. The current 5th edition of the DSM, the DSM-5, adopted by VA at 38 C.F.R. § 4.125 (2017), does not utilize GAF scores, but the GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF scores assigned in a case, like an examiner's assessment of the severity of a condition, are not dispositive of the rating issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The RO has assigned the Veteran's anxiety disorder an initial 10 percent rating under DC 9413 pertaining to an unspecified anxiety disorder, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the general rating formula, a 10 percent evaluation is assigned for occupational and social 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 continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 30 percent rating is warranted when the mental disorder is manifested by occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted for 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation 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 actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation 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. Here, the preponderance of the evidence establishes that for the period prior to April 15, 2012, an increased initial 30 percent evaluation is warranted for the Veteran's anxiety disorder. VA clinical records document mental health treatment at the Tampa VA Medical Center (VAMC) beginning in April 2009, with the Veteran demonstrating several symptoms consistent with a 30 percent rating, including a depressed mood, anxiety, social isolation, and chronic sleep impairment, with generally satisfactory behavior. Upon VA examination in January 2010, the Veteran was found to manifest mild symptoms of depression, anxiety, and occasional irritability. The Veteran was not working, but reported that his unemployment was the result of physical pain and not his mental status. The January 2010 VA examiner opined that the Veteran's symptoms were not of sufficient severity to interfere with occupational and social functioning. With consideration of the contents of the VA treatment records and the Veteran's own reports of depression, anxiety, and social isolation, the Board finds that an increased 30 percent rating is warranted during the period prior to April 15, 2012. The Board has considered whether an increased rating is appropriate, but finds that the Veteran's anxiety disorder does not most nearly approximate the criteria associated with a rating higher than 30 percent prior to April 15, 2012. The Veteran's GAF scores during this period range from 62 to 68, consistent with mild symptoms and some difficulty with social and occupational functioning. Neuropsychological testing performed in connection with the January 2010 VA examination showed mild depression and moderate to severe anxiety, but the VA examiner concluded that these symptoms did not affect the Veteran's occupational or social functioning. VA treatment records during this period also show that the Veteran volunteered in his community, remained close with his children and other family members, and enjoyed some leisure activities such as reading and writing. He considered himself socially isolated, but reported in July 2010 that he had several strategies for controlling his anxiety and depression. There is no evidence of the specific symptoms associated with an increased 50 percent evaluation, such as panic attacks, impairment to memory, and impairment to judgement and/or abstract thinking. The January 2010 VA examiner also found that the Veteran's symptoms varied in intensity based on the amount of physical pain he experienced, but he generally functioned well. Based on the above, the Board finds that the Veteran does not experience symptoms that most nearly approximate the severity, frequency, or duration of those associated with a higher rating prior to April 15, 2012. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the period dating from April 15, 2012 to January 2, 2014, the Board finds that an increased 50 percent evaluation is warranted. During this period, the Veteran manifested an increase in the severity of his anxiety disorder; he reported to the Tampa VAMC emergency room in April 2012 that he was experiencing worry and concern, nightmares, muscle tension, irritability, loss of relationships, depressed mood, anhedonia, and low energy. He reported making a recent call to a suicide hotline with an improved mood after speaking to the operators. The Veteran denied having any actual suicidal ideation or plan during this period, but VA treatment records document increased irritability and depression. A GAF score of 55 was assigned in November 2013 by his VA provider, consistent with moderate symptoms and moderate difficulty with social and occupational relationships. Based on the increase in the severity of the Veteran's symptoms during this period, a 50 percent evaluation is warranted from April 15, 2012 to January 2, 2014. A rating in excess of 50 percent is, however, not appropriate during this period. Despite an increase in the Veteran's depression and irritability, he was able to maintain a romantic relationship with his girlfriend and stated in November 2013 that he enjoyed gardening, watching car shows, and had good social support from his girlfriend, friends, and family. The Veteran denied any active suicidal ideation during this period and clearly did not manifest any symptoms of the type contemplated by a 70 percent rating, to include obsessional rituals, speech impairments, or near continuous panic or depression. Rather, the Veteran's symptoms of anxiety and depression were exacerbated by some increased pain as noted by an April 2012 VAMC provider. Therefore, he did not experience symptoms of a similar severity, frequency, or duration as those contemplated by a rating higher than 50 percent during the period from April 15, 2012 and January 2, 2014. Regarding the period dating from January 3, 2014, the Board finds that the Veteran's anxiety disorder most nearly approximates the criteria associated with the current 10 percent evaluation. The Veteran consistently referred to his mood and symptoms as "improved" and "good" while receiving VA mental health treatment during this period. He attributed the improvement in his symptoms to exercise, faith, and greater self-awareness in controlling his temper and anger. His GAF scores during this period range from 57 to 70, consistent with mild to moderate symptoms, and the October 2015 VA examiner found that the service-connected anxiety disorder most nearly approximated mild or transient symptoms, so the criteria contemplated by a 10 percent evaluation. The Veteran still manifested some depression and anxiety during this period, but stated during the October 2015 VA examination that he was close to his family and friends, was hoping to begin working part-time as a chef, and felt that his anxiety disorder had improved. Testing showed that he still manifested some anxiety and used cannabis on a daily basis to control his complaints of pain, but had only mild symptoms and mild impairment related to the service-connected anxiety disorder. The frequency, duration, and severity of the Veteran's anxiety disorder clearly improved during this period and most nearly approximates a mild disability. The Board also finds the Veteran's own statements, characterizing his disability as improved, his mood as good, and his life as "happy," persuasive. The Board therefore finds that the current 10 percent rating, and not higher, is warranted for the period beginning January 3, 2014. The preponderance of the competent and credible evidence of record establishes that the Veteran's anxiety disorder has manifested varying degrees of severity during the claims period. Accordingly, and based on this evidentiary posture, the Veteran's disability warrants an increased 30 percent initial rating prior to April 15, 2012, a 50 percent rating from April 15, 2012 to January 2, 2014 and a 10 percent rating from January 3, 2014. ORDER A greater initial 30 percent rating, but not higher, for the anxiety disorder during the period prior to April 15, 2012 is granted, subject to the statutes and regulations governing the payment of VA compensation. An even greater 50 percent rating, but not higher, for the anxiety disorder during the period from April 15, 2012 to January 2, 2014 also is granted, also subject to the statutes and regulations governing the payment of VA compensation. However, a rating higher than 10 percent for the anxiety disorder since January 3, 2014 is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs