Citation Nr: 1813541 Decision Date: 03/06/18 Archive Date: 03/14/18 DOCKET NO. 10-41 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an effective date prior to October 29, 2010, for the grant of service connection for anxiety disorder. 2. Entitlement to an initial evaluation in excess of 50 percent for anxiety disorder. 3. Entitlement to service connection for the cause of the Veteran's death. 4. Entitlement to dependency and indemnity compensation (DIC). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esquire ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1943 to November 1945. He passed away in April 2016, and the Appellant is his surviving spouse. Substitution has been granted. The matter of anxiety disorder comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The matters of the Veteran's cause of death and DIC come before the Board from a September 2016 rating decision of the Milwaukee, Wisconsin, RO. Other issues, at different times, were raised by the Veteran. Our review of this case indicates that these issues were fully resolved and/or granted. No other issue appears to be before the Board at this time. While the appellant relocated to Michigan during the pendency of the appeal, jurisdiction in these matters remains with the Phoenix RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran initially filed his claim for service connection for anxiety on October 29, 2010, which is the date entitlement to the benefit arose. 2. Throughout the appeal period, the Veteran's anxiety disorder did not result in occupational and social impairment with deficiencies in most areas due to symptoms of severity, frequency, and duration more nearly approximating the 70 percent rating criteria. 3. The Veteran died in April 2016. The death certificate lists the immediate cause of death as acute congestive heart failure and the contributing causes of death as ischemic cardiomyopathy and coronary artery disease. 4. The Veteran's service-connected conditions were not a principal or contributory cause of the Veteran's death. 5. The Veteran was not evaluated as totally disabled as a result of his service-connected disabilities for 10 continuous years immediately preceding death, rated as totally disabled continuously for a period of no less than five years from the date of discharge from active duty, and was not shown to be a former prisoner of war. CONCLUSION OF LAW 1. The criteria for an earlier effective date for the grant of service connection for anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400 (2017). 2. The criteria for an initial rating in excess of 50 percent disabling for an anxiety disorder are not met. 38 U.S.C. §§ 1101, 1110, 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2017). 3. The criteria for service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1101, 1110, 1310, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.312 (2017). 4. The criteria for DIC are not met. 38 U.S.C. § 1318 (2012); 38 C.F.R. § 3.22 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Effective Date The Appellant contends that the Veteran is entitled to an effective date prior to October 29, 2010, for the grant of service connection for anxiety disorder. Except as otherwise provided, the effective date of an evaluation and award of 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. After a final disallowance of a claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). The Veteran was denied service connection for psychoneurosis, anxiety in a June 1950 rating decision. That decision was not appealed, and therefore became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). VA received a separate service connection claim for anxiety on October 29, 2010. VA received no statements from the Veteran prior to this date which could have been construed as an informal claim for a psychiatric disorder. A December 2012 rating decision granted service connection for anxiety and assigned the Veteran a 50 percent rating effective October 29, 2010, the date of the Veteran's claim. The Veteran submitted a timely Notice of Disagreement (NOD) in regards to the assigned effective date. Because the June 1950 rating decision became final, the effective date for the assignment of service connection for anxiety in this case is the date VA received the Veteran's claim for service connection, October 29, 2010. The Board finds that the Veteran is not entitled to an earlier effective date for this disability. Initial Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "stage" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2 (2017). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. At the time of the Veteran's death, his anxiety disorder was rated as 50 percent disabling. 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Board notes that the claims file includes VA treatment records and VA examinations in which medical professionals considered the Veteran's psychiatric diagnoses using the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The Board notes that the newer Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V) has been officially released, and VA regulations have been changed to reflect this fact. See 38 C.F.R. § 4.130 (2017). The Veteran has been evaluated under the DSM-IV as well as the DSM-V criteria, and thus the Board shall consider his appeal in light of both the DSM-IV and the DSM-V criteria. Diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV). The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered, but is not determinative in and of itself, of the percentage rating to be assigned. VAOPGCPREC 10-95. The Board notes that GAF scores are just one component of the Veteran's disability picture, and that it does not have a "formula" that it follows in assigning evaluations. Rather, the Board considers the Veteran's entire disability picture, including GAF scores. Under such circumstances, Veterans with identical GAF scores may be assigned different evaluations based on each individual's symptomatology and level of functioning. Furthermore, the Board need not accept a GAF score as probative. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others)). A December 2010 note from Dr. Kimbrel, the Veteran's treating physician at the Mayo Clinic, stated that the Veteran was treated for symptoms of depression and anxiety, which are commonly seen in chronic pain disorders. He did not detail the Veteran's symptoms. An April 2012 private vocational assessment stated that while the Veteran used to enjoy gardening, golf, yard work, and bible study, he no longer engaged in these activities and substantially limited socializing with friends "due to pain in his legs and back and limited mobility." The Veteran underwent a VA examination in May 2012, during which the examiner noted a previous diagnosis of anxiety disorder, not otherwise specified (NOS). The examiner noted that the Veteran's mental condition causes 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. The Veteran stated that his relationship with his wife and children was "OK" and "fine," respectively. He further stated that he used to be active, and enjoyed doing so, but that his leisure and recreation was curtailed due to his physical health problems. The examiner noted that the Veteran was diagnosed with anxiety in 2000, depression in 2010, and insomnia in 2011. The examiner noted the following symptoms related to the Veteran's diagnosis: depressed mood; anxiety; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; and disturbances of motivation and mood. The examiner assigned the Veteran a GAF score of 57. As a result of this examination, the Veteran was awarded service connection for his mental condition. After a review of all the evidence, lay and medical, the Board finds that the Veteran's anxiety disorder symptoms most nearly approximated occupational and social impairment with reduced reliability and productivity for the entire period on appeal. The May 2012 VA examination and additional treatment records indicate that the Veteran had symptoms of depression, anxiety, chronic sleep impairment, circumstantial and circulatory speech, disturbances of motivation and mood, an altered affect, and difficulty in establishing and maintaining effective work and social relationships. Therefore, a disability rating of 50 percent is warranted for an acquired psychiatric disorder for the entire period on appeal. In this case, the criteria for a disability rating of 70 percent have not been met or more nearly approximated for the entire period on appeal. The evidence does not show that the Veteran experienced occupational and social impairment with deficiencies in most areas. The evidence shows no symptoms of obsessional rituals which interfered with routine activities, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, inability to establish and maintain effective relationships, 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, disorientation to time or place, memory loss of names of close relatives, own occupation, or own name, or neglect of personal appearance and hygiene. Although the Veteran's treatment records indicate regular depression and an inability to establish effective relationships with people who were not of his immediate family, the record does not reflect occupational and social impairment in most areas such that a 70 percent disability rating would be appropriate. The Veteran reported having at least decent relationships with most members of his family. He maintained employment for 30 years with a single employer and was retired. For these reasons, the Board finds that a preponderance of the evidence is against a rating in excess of 50 percent for an acquired psychiatric disorder. While the Veteran clearly had problems with this condition, it is important for the Veteran's spouse to understand that this is the basis for the 50 percent finding. Thus, the Board finds that the Veteran's anxiety disorder symptoms more nearly approximate the criteria under Diagnostic Code 9411 for a rating of 50 percent, but no higher, for the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.130. Service Connection The Appellant is seeking service connection for the cause of the Veteran's death. Specifically, she asserts that he died of a heart condition that was hastened by his service-connected disabilities, particularly the loss of use of both of his lower extremities. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for cause of death may be awarded to a Veteran's surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a Veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. The Veteran's death certificate lists the immediate and contributing causes of his death as acute congestive heart failure, ischemic cardiomyopathy, and coronary artery disease, respectively. At the time of his passing, the Veteran was service connected for loss of use of both feet; anxiety disorder; right lower leg fatigue and weakness; left lower leg fatigue and weakness; traumatic arthritis of the lumbosacral spine; and residuals, fracture, left clavicle. Additionally, the Veteran was in receipt of Special Monthly Compensation (SMC) at the L-1 and P-1 levels due to the loss of use of both of his feet and his anxiety disorder. Turning first to the matter of whether the Veteran's cause of death was related to service, service treatment records reveal no complaints referable to heart disease or any abnormality of the heart. No abnormalities in blood pressure or respiration were noted, and there were no arrhythmias. Since service, the record reveals no competent evidence of a nexus between the cause of the Veteran's death and his period of service. Boyer v. West, 210 F.3d 1350, 1353 (Fed. Cir. 2000); Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). That is, there is simply no competent evidence that establishes a link between the Veteran's congestive heart failure, ischemic cardiomyopathy, or coronary artery disease and military service. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against a finding that atherosclerotic heart disease was incurred in or aggravated by service. The probative evidence does not show that the condition was related to the Veteran's active military service, or that a chronic disability was incurred in service. While the Veteran received treatment for a variety of conditions in service, he did not seek treatment related to any cardiac symptomatology. Heart abnormalities were not found within one year of separation from service. Rather, the evidence reflects that the Veteran's heart disease was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not heart disease, weighs against the credibility of any statement that heart disease persisted since discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board acknowledges that no medical opinion has been obtained on this point. However, the Board finds that the evidence, which reveals that the Veteran did not have these disabilities or any cardiovascular abnormality during service, and does not reflect competent evidence showing a nexus between service and the disorders, or even an indication of a nexus, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. As service and post-service medical records provide no basis to grant this claim, and in fact provide evidence against this claim, the Board finds that no reasonable possibility exists that such an opinion would aid in substantiating the Appellant's claim. 38 U.S.C. § 5103A(a); Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). To the extent the appellant generally asserts that the Veteran's cause of death was related to service, she has not been shown to have the medical training or expertise to be competent to render an opinion as to the medical diagnosis or etiology of cardiovascular disease. See 38 C.F.R. § 3.159(a)(1)-(2); Jandreau, 492 F.3d at 1377; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Appellant has identified no outstanding evidence that could be obtained to substantiate her claim, and the Board is unaware of any such outstanding evidence. Given the above, no further action related to the duties to notify and assist is required in this case. Additionally, presumptive service connection for atherosclerotic heart disease as a "chronic disease" is not warranted as there is no documentation of the condition from within one year of the Veteran's 1945 discharge. As for a continuity of symptomatology between the disorder and service, heart disease was not noted during service, and characteristic manifestations of the disease processes were not identified. The next issue is critical: The Board finds that the preponderance of the evidence is against a finding that any of the Veteran's service-connected conditions contributed to his death. The Board acknowledges that no medical opinion has been obtained on this point. The central argument of the Veteran's representative appears to be that because the Veteran had severe service connected disabilities (which is not in dispute) we must assume that the conditions caused his death, or contributed substantially or materially to his death. However, the Board again finds that this record, which does not reflect competent evidence suggesting such a link, warrants the conclusion that a remand for an examination and/or opinion is not warranted or necessary to decide the claim. As the records provide no basis to grant this claim, and in fact provide evidence against this claim because there is simply no indication of a connection, the Board finds that no reasonable possibility exists that such an opinion would aid in substantiating the Appellant's claim as it would be based on gross speculation, at best. 38 U.S.C. § 5103A(a); Wood, 520 F.3d at 1347. In this regard, the Board must note that the Veteran was 91 when he died. In his own statements, detailing the nature and extent of his problems, he did not associate his current service connected problems with the condition that would cause his death. It is not simply an absence of evidence in this case, but simply nothing that associates the death of a 91 year old Veteran to one or more service connected conditions. Under the law, the Board believes it needs some indication of an association for additional development to be warranted. In any event, any form of medical opinion on this issue, in light of the medical record and the facts of this case, would have highly limited probative value, and most likely none. The best evidence in this case, on this issue, the post-service medical evidence, simply provides evidence against the contention that there is such a connection as none of his health care providers suggest that his service connected problems was causing the problem that would lead to his death. Suggesting that a 91 year-old Veteran died because of a particular service connected problem or problems, in light of this particular record, is not factually conceivable. Accordingly, the Board finds that the preponderance of the evidence is against service connection for the cause of the Veteran's death, so there is no reasonable doubt to resolve in the Appellant's favor. Dependency and Indemnity Compensation A surviving spouse may establish entitlement to DIC pursuant to 38 U.S.C. § 1318 when it is shown that the veteran's death was not the result of his own willful misconduct and, at the time of death, the veteran was receiving compensation for a service-connected disability that was: (1) rated by VA as totally disabling for a continuous period of at least ten years immediately preceding death; or, (2) rated by VA as totally disabling continuously since the veteran's release from active duty and for a period of at least five years immediately preceding death; or, (3) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. See 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). In the instant case, the Veteran was released from active duty in 1945. His loss of use of both feet associated with traumatic arthritis was evaluated as 100 percent disabling from April 2013. Prior to that date, his combined service-connected conditions rendered him 90 percent disabled. He died in April 2016, which would establish he was totally disabled for less than 10 years immediately preceding his death. There is no evidence to suggest that he was a prisoner of war, and the Appellant has not alleged such fact. Accordingly, he was not rated by VA as totally disabled for a continuous period of at least 10 years immediately preceding death; was not rated totally disabled continuously since his release from active duty and for a period of not less than five years immediately preceding death; and has not been shown to be a former prisoner of war. 38 C.F.R. § 3.22(a). Thus, the statutory criteria under 38 U.S.C. § 1318 have not been met. Entitlement to DIC benefits under 38 U.S.C. § 1318 is based upon specific and unambiguous requirements that have not been met in the instant case. As the preponderance of the evidence is against the claim of entitlement to DIC under 38 U.S.C. § 1318, the benefit of the doubt doctrine does not apply, and her claim must be denied. See 38 U.S.C. § 5107. Duties to Notify and Assist Neither the Appellant nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). ORDER An effective date prior to October 29, 2010, for the grant of service connection for anxiety disorder, is denied. For the entire period on appeal, a 50 percent disability rating, but no higher, for anxiety disorder, is granted. Service connection for the cause of the Veteran's death is denied. Dependency and Indemnity Compensation is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs