Citation Nr: 21004221 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-04 773 DATE: January 26, 2021 ORDER Entitlement to a disability rating in excess of 30 percent prior to October 19, 2015 for generalized anxiety disorder, and in excess of 50 percent thereafter for unspecified depressive disorder with anxious distress (previously rated as generalized anxiety disorder), is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for hiatal hernia (gastroesophageal reflux disorder (GERD)) is remanded. FINDINGS OF FACT 1. Prior to October 19, 2015, the Veteran’s generalized anxiety disorder was manifested by anxiety and sleep disturbances, symptomatology more nearly approximated by 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). 2. From October 19, 2015, the Veteran’s unspecified depressive disorder with anxious distress was manifested by depressed mood, anxiety, panic attacks occurring weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, symptomatology more nearly approximated by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for generalized anxiety disorder prior to October 19, 2015, and in excess of 50 percent thereafter for unspecified depressive disorder with anxious distress (previously rated as generalized anxiety disorder), have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Codes 9400 and 9435 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1961 to January 1965. These matters come to the Board of Veterans’ Appeals (Board) from a June 2013 rating decision which continued a 30 percent evaluation for generalized anxiety disorder and continued a 10 percent evaluation for hiatal hernia (GERD). In a November 2015 rating decision, the RO granted an increased 50 percent evaluation for unspecified depressive disorder with anxious distress (previously rated as generalized anxiety disorder), effective October 19, 2015. As this does not represent a maximum grant of the benefit sought on appeal, the increased rating claim for unspecified depressive disorder with anxious distress remains pending before the Board. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In May 2019, the Board remanded the matters for further development, to include obtaining new VA examinations to assess the severity of the Veteran’s disabilities. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. As such, the Board has considered the Veteran’s claim from March 2012 to the present. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a disability rating in excess of 30 percent prior to October 19, 2015 for generalized anxiety disorder. Entitlement to a disability rating in excess of 50 percent from October 19, 2015 for unspecified depressive disorder with anxious distress (previously rated as generalized anxiety disorder). The Veteran contends that an increased rating is warranted for his service-connected generalized anxiety disorder prior to October 19, 2015, and for his service-connected unspecified depressive disorder with anxious distress from October 19, 2015. The Veteran’s generalized anxiety disorder is evaluated at 30 percent prior to October 19, 2015 under 38 C.F.R. § 4.130, Schedule of Ratings – Mental disorders, Diagnostic Code (DC) 9400. The Veteran’s unspecified depressive disorder with anxious distress is evaluated at 50 percent from October 19, 2015 under 38 C.F.R. § 4.130, DC 9435. 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. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the applicable rating criteria, a 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent disability rating is warranted when 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. Id. A 70 percent disability rating 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 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 work-like setting); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating, the maximum available, is warranted when 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan, 16 Vet. App. at 436. Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. This appeal was certified to the Board after August 4, 2014; thus, the DSM-5 applies, and GAF scores are inapplicable. 80 Fed. Reg. 14, 308 (March 19, 2015). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Turning to the evidence of record, an August 2012 VA mental health treatment note reflects the Veteran reported a decrease in his anxiety and denied depression. However, a November 2012 VA mental health treatment record reflects the Veteran reported occasional depression and anxiety and in June 2013, he reported that he stayed nervous. The Veteran appeared well-kempt, calm and relaxed, cooperative, and alert and oriented. The Veteran’s speech was normal, mood ranged from “not bad” to good with congruent affect, thought processes were linear, and his insight and judgment were good. A June 2013 VA examination report reflects a diagnosis of generalized anxiety disorder. The Veteran reported feelings of anxiety despite medication, with poor sleep. The Veteran described leading a pretty active life and engaging in many social relationships despite his anxiety. He reported good relationships with his girlfriend of five years, his children, and grandchildren, and that he played weekly in a band and took walks but spent his days mostly at home. Upon examination, the Veteran was oriented to all spheres and was pleasant and cooperative. He presented with adequate appearance and hygiene, normal speech, mood mildly anxious with congruent affect, linear thought processes, and intact attention and memory. The Veteran denied suicidal or homicidal ideation and violent or assaultive behavior. The examiner found symptoms of anxiety and chronic sleep impairment resulting in 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 that upon examination and review of the medical records, the Veteran continued to experience mild symptoms of generalized anxiety across multiple situations. December 2013, May 2014, November 2014, and June 2015 VA mental health treatment records reflect the Veteran reporting being busy with his hobbies and doing well, and while he denied depression, he continued to have some anxiety and sleep disturbances. The Veteran appeared well-kempt, behavior ranged from restless to calm and relaxed, he was cooperative, and alert and oriented. The Veteran’s speech was normal, mood was euthymic with congruent affect, thought processes were linear, and his insight and judgment were good. An October 2015 VA examination report reflects a diagnosis of unspecified depressive disorder with anxious distress and that this diagnosis was a progression of his previously diagnosed generalized anxiety disorder. The Veteran reported good relationships with his family and many friends and that while he was still busy, he did not have the energy or mood to engage in his hobbies, like playing in his band, as often as he had previously. Upon examination, the Veteran was oriented to all spheres and was pleasant and cooperative. He presented with adequate appearance and hygiene, normal speech, mood mildly dysphoric with mildly anxious affect, linear thought processes, and intact attention and memory. The Veteran denied suicidal or homicidal ideation and violent or assaultive behavior. The examiner found symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood resulting in occupational and social impairment with reduced reliability and productivity. April 2017, May 2018, and February 2019 VA mental health treatment records reflect the Veteran complained of insomnia, sadness, depression, anxiety, and being fatigued easily and reported forcing himself to play music but taking a break from his other hobbies. The Veteran appeared well-kempt, behavior was calm, he was cooperative, and alert and oriented. The Veteran’s speech was normal, mood was ranged from dysthymic to euthymic with anxiety and congruent affect, his thought processes were linear, and his insight and judgment were good. A November 2019 VA examination report reflects a diagnosis of unspecified depressive disorder with anxious distress. The Veteran reported an increase in his anxiety since open-heart surgery, low energy level, and feelings of hopelessness. He reported good relationships with his girlfriend and family. He reported having friends and playing in his band when he felt up to it but had not played in two months. Upon examination, the Veteran was oriented to all spheres. He presented with adequate appearance and hygiene, normal speech, pleasant mood with congruent affect, linear thought processes, and intact attention and memory. The Veteran denied suicidal or homicidal ideation but reported wanting to punch someone although he did not act on it. The examiner found symptoms of depressed mood, anxiety, panic attacks occurring weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that it appeared the Veteran’s level of functioning had somewhat worsened since his last examination. June and July 2020 VA mental health treatment records note the Veteran was last seen in May 2019. He reported a history of anxiety, nightmares, and mood alterations. He reported staying active with his hobbies, which was beneficial for his mood and anxiety, and denied suicidal and homicidal ideations. The Veteran appeared cooperative and alert and oriented, his speech was normal, mood was euthymic, thought processes were organized, and his insight and judgment were good. Based upon the evidence of record, including that specifically discussed above, the Board concludes that a disability rating in excess of 30 percent is not warranted for the Veteran’s generalized anxiety disorder prior to October 19, 2015. Specifically, the evidence reflects that the Veteran’s generalized anxiety disorder resulted in symptomatology such as anxiety and sleep disturbances, symptoms more nearly approximated by a rating based on occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A rating of 50 percent or higher is not warranted for the Veteran’s generalized anxiety disorder prior to October 19, 2015. The evidence does not show any indication of symptomatology that is more nearly approximated by a 50 percent evaluation, such as flattened affect, abnormal speech, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships. Rather, the evidence of record shows the symptoms most endorsed by the Veteran were anxiety and sleep disturbances. Furthermore, despite the Veteran’s anxiety, he maintained a relatively active lifestyle by participating in hobbies, his speech was normal, his mood was generally good, his memory and concentration were intact, and he had good relationships with friends and family. Therefore, the assignment of a 50 percent evaluation or higher is not warranted prior to October 19, 2015 for the Veteran’s generalized anxiety disorder. From October 19, 2015, the Board concludes that a disability in excess of 50 percent for the Veteran’s unspecified depressive disorder with anxious distress is not warranted. Specifically, the evidence reflects that the Veteran’s unspecified depressive disorder with anxious distress resulted in symptomatology such as depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood, symptoms more nearly approximated by a rating based on occupational and social impairment with reduced reliability and productivity. A rating of 70 percent or higher is not warranted for the Veteran’s unspecified depressive disorder with anxious distress from October 19, 2015. The evidence does not show any indication of symptomatology that is more nearly approximated by a 70 percent evaluation, such as suicidal ideation; obsessional rituals, illogical speech, 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, or an inability to establish and maintain effective relationships. Rather, the evidence of record shows the symptoms most endorsed by the Veteran were depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. While the evidence shows symptoms such as panic attacks occurring weekly or less often, hopelessness, and difficulty in adapting to stressful circumstances, the evidence does not show that the Veteran’s symptoms have been so frequent or disabling to rise to a level contemplated by a 70 percent disability rating. Therefore, the assignment of a 70 percent evaluation or higher is not warranted from October 19, 2015 for the Veteran’s unspecified depressive disorder with anxious distress. The Board has considered the lay statements of record regarding the severity of the Veteran’s psychiatric disability and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). However, the Veteran has not shown that he has the training or medical expertise to competently report on the severity of his psychiatric disability as it relates to the rating criteria and the evaluation that should be assigned. As such, the Board finds the Veteran’s representations in this regard to be of extremely limited probative value and significantly outweighed by the opinions expressed concerning the severity of the Veteran’s psychiatric disability in relation to the rating criteria as discussed above by the Veteran’s treating clinicians and the VA compensation examinations. Accordingly, entitlement to a disability rating in excess of 30 percent for generalized anxiety disorder prior to October 19, 2015, and in excess of 50 percent thereafter for unspecified depressive disorder with anxious distress, is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for hiatal hernia (gastroesophageal reflux disorder (GERD)) is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to a disability rating in excess of 10 percent for hiatal hernia (GERD) at this time. Specifically, the Veteran’s hiatal hernia (GERD) is rated under 38 C.F.R. § 4.114, Diagnostic Code 7399-7346. A review of the record reflects that the Veteran’s disability requires continuous medication to control and in May 2019, he required an increased dosage to control his symptoms. The Board notes that DC 7399-7346 does not account for the ameliorative effects of medication. The nature and severity of the Veteran’s symptoms without the ameliorative effects of medication are not shown by the record, and because such is primarily a medical question, the Board finds that a remand for a new VA examination is necessary. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from January 2020 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hiatal hernia (GERD). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should comment on the presence or absence of the following: persistently recurrent epigastric distress; dysphagia, pyrosis; regurgitation; substernal or arm or shoulder pain; considerable impairment of health; vomiting; material weight loss; hematemesis or melena, with moderate anemia; constipation, diarrhea, abdominal distress, and pain, as well as other disturbances in bowel function associated with gastrointestinal disability, and describe any health impairment to include whether it is mild, moderate, or severe. The examiner should specifically note the medication the Veteran takes to control his hiatal hernia (GERD), and comment, to the extent possible, on the additional symptoms and related impairment that would be present throughout the appeal period without the relief provided by medication used to treat the condition. 3. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.