Citation Nr: 20007843 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-16 457 DATE: January 30, 2020 ORDER Entitlement to a disability rating of 70 percent, but no higher, for specific phobia, fear of heights, is granted for the entire period on appeal. Entitlement to a disability rating of 20 percent for dry eye syndrome is granted for the entire period on appeal. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s specific phobia, fear of heights has been manifested by symptoms more closely approximated with manifested by occupational and social impairment, with deficiencies in most areas. 2. Throughout the appellate period, the Veteran’s specific phobia, fear of heights has not been productive of total occupational and total social impairment. 3. For the entire period on appeal, the Veteran’s service-connected dry eye syndrome has been manifested by a disorder of the lacrimal apparatus, specifically dry eye, bilaterally. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, the criteria for a 70 percent initial evaluation, but no higher, for specific phobia, fear of heights have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9403 (2019). 2. Resolving all doubt in the Veteran’s favor, the criteria for a 20 percent initial evaluation, but no higher, for dry eye syndrome have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.79, Diagnostic Code 6025 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1980 to October 1986. During his period of service, he earned the Air Force Good Conduct Medal with one oak leaf cluster, Air Force Longevity Service Award Ribbon, and Air Force Training Ribbon. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to higher disability ratings for specific phobia, fear of heights The Veteran contends that he is entitled to disability ratings in excess of 30 percent rating prior to June 7, 2017, and 70 percent thereafter for specific phobia, fear of heights. His disability is evaluated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9403. A 30 percent rating is warranted where there is 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 (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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. A 100 percent rating is warranted where there is 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. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” A June 2010 treatment record shows that the Veteran appeared for a mental health consult, at which time he reported that he was “having problems with [his] ‘nerves.’” The Veteran reported that he became afraid to cross bridges a few years prior to examination. He indicated that he could drive over bridges, but it made him very anxious and he sometimes had to pull over to the side of the road to calm and ready himself before crossing. Notable stressors included the murder of his son, caring for his mentally disabled brother, chronic pain resulting in the loss of employment, and ongoing conflict with a neighbor. The examiner noted the presence of severe depression, with symptoms of depressed mood, anhedonia, difficulty with sleep onset and maintenance, fatigue, poor appetite, difficulty concentrating, and restlessness. Anxiety was noted, with the Veteran endorsing symptoms of frequent worry which he is unable to control, difficulty relaxing, restlessness, irritability, poor concentration, and difficulty sleeping. The Veteran also reported occasional panic attacks lasting 10 minutes each, particularly when in crowds or when faced with driving over a bridge. He reported avoiding these situations when it was convenient, but experiences distress when it cannot be avoided. During the panic attacks, the Veteran endorsed experiencing accelerated heartrate, sweating, shaking, shortness of breath, abdominal distress, and fear of losing control. The Veteran reported difficulty with sleep onset and maintenance with a total of four to five hours of sleep per night. He stated that he often worried about stressors when was not sleeping. He indicated that he could not sleep without use of pain meditation. He also reported that he drank at least six beers per day. He drank more on the weekends, in addition to two to three servings of liquor. The examiner noted depressive symptoms of little interest or pleasure in doing things; feeling down, depressed, or hopeless; sleep disturbance; feeling tired/low energy; poor appetite or overeating; low self-esteem/self-criticism; trouble concentrating; and psychomotor agitation or retardation. The Veteran appeared for a VA mental disorders examination in September 2010. The examiner diagnosed alcohol dependence and specific phobia – fear of heights. She indicated that the Veteran’s level of occupational and social impairment could be best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning. The Veteran appeared for a VA mental disorders examination in February 2012. The examiner diagnosed recurrent moderate major depressive disorder and simple phobia, specifically of heights. She indicated that the Veteran’s level of occupational and social impairment could be best summarized as occupational and social impairment with reduced reliability and productivity. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). The Veteran also reported that he has to turn around when having to cross the river. He stated that he would compose himself and go with anxiety. He reported a panicked feeling only with heights. The Veteran reported being “really depressed” with increased stressors within the year prior to examination, to include separation and divorce, concerns about his children, issues related to his mentally disabled brother, issues surrounding his son’s murder, and financial and health problems. He reported excessive worry. His sleep patterns were marked by waking during the night from 25 minutes to one hour once or twice a night on average. He also reported fair concentration and fatigue when reading, social withdrawal, sad mood, and irritability. The Veteran appeared for a VA mental disorders examination in June 2013. The examiner diagnosed panic disorder with agoraphobia, alcohol dependence in remission, and specific phobia. He indicated that the Veteran’s level of occupational and social impairment could be best summarized as 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 examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). The examiner noted additional symptoms of fear of public speaking, fear of confined spaces, and fear of bridges. The Veteran next appeared for a VA mental disorders examination in June 2017. The examiner diagnosed anxiety not otherwise specified. He indicated that the Veteran’s level of occupational and social impairment could be best summarized as occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was often tense and anxious. He also reported that he had insomnia and might drink to go to sleep. He felt overwhelmed and indicated that his anxiety had worsened over time. He found driving to be a chore and became nervous when doing so. He did not drive in traffic or inclement weather conditions. He described concomitant panic attacks and became nervous if among a crowd. He described difficulty in situations where he had to speak publicly. He further reported that driving precipitated panic attacks, particularly when driving over bridges. The Veteran felt embarrassed by his anxiety. The examiner noted symptoms of depressed mood; anxiety; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. The Veteran most recently appeared for a VA mental disorders examination in January 2018. The examiner diagnosed anxiety not otherwise specified. He indicated that the Veteran’s level of occupational and social impairment could be best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran reported issues with anxiety, panic, and nervousness, particularly when he is on the road. He has difficulties getting around due to his anxiety. He maintained an ongoing fear of heights, which was manifested by being on the second floor or higher. The Veteran felt embarrassed by his anxiety. He continued to report difficulty in situations where he had to be around people or speak publicly. The examiner noted symptoms of depressed mood; anxiety; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. The record also contains additional VA treatment records that are consistent with the VA examinations of record. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent evaluation for his service-connected specific phobia, fear of heights, for the period on appeal. The evidence of record supports a finding that the Veteran’s symptomatology has remained consistent throughout the appeals period. The Veteran has consistently displayed symptoms that include depressed mood; anxiety; chronic sleep impairment; sleep disturbances; difficulty with concentration; diminished interest in activities; panic attacks more than once a week; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; excessive worry; fear of public speaking; fear of heights; fear of confined spaces; and fear of bridges. Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of a 70 percent rating for the period on appeal. Although an increased rating of 70 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a 100 percent rating for any period of time during the pendency of the claim. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There is no evidence of 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; or other symptoms on par with the level of severity contemplated by those symptoms. Mauerhan, supra, Vazquez-Claudio, supra. Additionally, there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the currently assigned 70 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Hart, supra. For all the foregoing reasons, the Board finds that a 70 percent evaluation, but no higher, is warranted for the period on appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 2. Entitlement to a higher rating for dry eye syndrome The Veteran’s dry eye with allergic component OU (bilateral) is evaluated as noncompensable under 6099-6018, as analogous to a disease of the eye under the criteria for chronic conjunctivitis (nontrachomatous), as analogous to a disease of the eye under the criteria for disorders of the lacrimal apparatus (epiphora, dacryocystitis, etc.). See 38 C.F.R. § 4.79. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20. Here, the Board finds that use of DC 6099-6025 throughout the appeal period is warranted, as disorders of the lacrimal apparatus is most analogous to the Veteran’s primary disability. Accordingly, as will be discussed below, the Board finds that a uniform rating of 20 percent, but no higher, is warranted for the entire period on appeal. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. There was no amendment to DC 6025. Under DC 6025, a 20 percent rating is warranted for bilateral involvement and a 10 percent rating is warranted for unilateral involvement. The Veteran appeared for a VA eye conditions examination in December 2010. The examiner diagnosed dry eyes secondary to poor tear film. The Veteran appeared for a VA eye conditions examination in December 2011. The examiner diagnosed bilateral dry eye syndrome. The Veteran next appeared for a VA eye conditions examination in June 2013. The examiner diagnosed bilateral dry eye syndrome. The Veteran most recently appeared for a VA eye conditions examination in June 2017. The examiner diagnosed bilateral dry eyes. The record also contains additional VA treatment records that are consistent with the VA examinations of record. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his dry eye syndrome warrants a 20 percent evaluation for the entire period on appeal. The medical evidence supports a finding that the Veteran has had a disorder of the lacrimal apparatus, specifically dry eye, bilaterally throughout the entire period on appeal. Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of a 20 percent rating throughout the appellate period. This represents the maximum disability rating under DC 6025. The Board also finds the preponderance of evidence is against a finding that there is any other applicable diagnostic code in the rating schedule for diseases of the eye that would result in a higher rating for his bilateral eye condition. As previously noted, the medical evidence of record indicates the Veteran’s disability is a bilateral disorder of the lacrimal apparatus; therefore, Diagnostic Code 6025 is the most closely related diagnostic code based not only on the functions affected, but also the anatomical localization and symptomatology of the Veteran’s disability. VA examination reports show the Veteran’s bilateral eye condition does not cause compensable loss of visual acuity or impairment of visual fields or muscle function. As the Veteran is entitled to the highest rating available under the most analogous diagnostic code, an initial rating in excess of 20 percent for dry eye syndrome must be denied. Accordingly, the Board finds that the Veteran’s dry eye syndrome warrants a 20 percent evaluation throughout the appeal period, but that the claim of entitlement to a disability rating in excess of 20 percent at any time during the appeal period must be denied. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Joseph, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.