Citation Nr: 21066300 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-59 547 DATE: October 29, 2021 ORDER A rating in excess of 50 percent for adjustment/anxiety disorder is denied. A rating in excess of 10 percent for hypertension is denied. A rating in excess of 10 percent for transient ischemic attack is denied. A 60 percent rating for cutaneous polyarteritis nodosa is granted. FINDINGS OF FACT 1. The weight of the evidence is against finding the Veteran's adjustment/anxiety disorder caused occupational and social impairment with deficiencies in most areas or total impairment. 2. The evidence does not show the Veteran had diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 3. The weight of the evidence is against finding the Veteran experienced residual symptoms or impairment from transient ischemic attack. 4. Resolving doubt in the Appellant's favor, the evidence shows the Veteran's cutaneous polyarteritis nodosa required near-constant immunosuppressive drugs. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for adjustment/anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, DC 7101. 3. The criteria for a rating in excess of 10 percent for transient ischemic attack have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8008. 4. The criteria for a 60 percent rating for cutaneous polyarteritis nodosa have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7821. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1969 to October 1972. The Veteran passed away in November 2013. The Appellant is his surviving spouse and has been substituted in this appeal. Increased Rating 1. A rating in excess of 50 percent for adjustment/anxiety disorder Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM)-5 no longer utilizes GAF scores. DSM-5 is applicable for cases certified to the Board on or after August 4, 2014. Under the General Rating Formula, the criteria for a 30 percent rating are: 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). The criteria for 50 percent rating are as follows: 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for 70 percent rating are as follows: 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; obsessive 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. The criteria for 100 percent rating are as follows: 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, own name. 38 C.F.R. § 4.130, DC 9400. Based on the evidence of record, the Board finds the criteria for a rating in excess of 50 percent for anxiety/adjustment disorder have not been met. 38 C.F.R. § 4.130, DC 9400. The weight of the evidence is against finding the Veteran's anxiety/adjustment disorder caused deficiencies in most areas or total impairment. An August 2011 treatment record shows the Veteran reported symptoms of alertness and anger, keeping one gun by his bed, and never going the same way home. During the September 2011 examination, the Veteran reported survivor's guilt, insomnia, panic attacks, anxiety, depression, forgetfulness, impatience, mood swings, edginess, irritability, a history of violent behavior and angry outbursts toward his wife but a fair and strong relationship, and good relationships with his daughter, son, and grandson. He also reported working fulltime as a teacher for 22 years, enjoying his work, and having good relationships with his supervisor and co-workers. The Veteran reported being a member of several clubs, including the Elks Lodge, Tennis Association, and Boy Scouts. The examiner classified the Veteran's description of symptoms as mild, episodic, and waxing and waning. The examiner recorded symptoms of irritability and angry outbursts; exaggerated startle response; panic attacks weekly or less often; disturbance of motivation and mood; mood swings; anxiety; impaired impulse control; depressed mood; memory impaired such as forgetting names, directions, and recent events; and impaired attention or focus. The examiner found the Veteran had full orientation, appropriate appearance and hygiene, appropriate behavior, good eye contact, normal speech, normal thought, unimpaired judgment, the ability to manage finances, no suicidal or homicidal ideation or history, and no delusions, hallucinations, or obsessive-compulsive behavior. The examiner concluded that the Veteran's mental health symptoms were not enough to interfere with social and occupational functioning or require continuous medications as he was able to establish and maintain effective work/school and social relationships, maintain effective family role functioning, and had no difficulty with recreation or leisurely pursuits. VA treatment records show symptoms of anxiety, depression, chronic insomnia, nightmares, being constantly watchful or on guard, and panic attacks in certain crowds or social situations. The Veteran was consistently found to have appropriate grooming/appearance, cooperative attitude, full orientation, normal speech and thought, and good memory, concentration, insight, and judgment. In January 2013, the Veteran reported functioning well at school teaching fourth grade. In his August 2013 application for Social Security Disability, the Veteran reported hobbies of fishing, hunting, camping, and swimming; going out to eat or to the movies approximately two times per week; and attending church and events at the Elks Lodge on a regular basis. In the September 2013 disability benefits questionnaire, the evaluator recorded nightmares, hypervigilance, insomnia, chronic sleep impairment, exaggerated startle response, depressed mood, anxiety, panic attacks weekly or less often, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work and work-like setting. The evaluator found the Veteran was able to manage finances and would experience occupational and social impairment with reduced reliability and productivity. The Board finds that although the Veteran's anxiety/adjustment disorder caused some social and occupational impairment, it did not cause deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and the Veteran was able to function generally satisfactorily. The evidence shows the Veteran was able to work successfully as a teacher without impacts from his mental health disability. Additionally, the Veteran reported good relationships with his family, enjoying hobbies, going out weekly, and participating in community activities. The criteria for the 30 and 50 percent ratings specifically address depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, panic attacks, and difficulty in establishing and maintaining effective work and social relationships. While the September 2013 evaluator recorded difficulty adapting to stressful circumstances, which is found in the 70 percent criteria, and the Veteran reported anger and violent behavior toward his wife, the evidence does not support that the Veteran's disability picture has the severity, frequency or duration of symptoms and impairment associated with a 70 percent rating. He was consistently found to have appropriate hygiene, normal thought, normal speech, and good memory, judgment, and insight. He behaved appropriately with examiners and treating providers. The evidence showing the Veteran was an effective father, spouse, and teacher suggests he was able to manage his stress and anger issues and his anxiety, depression, and any obsessive rituals did not interfere with routine activities or independent functioning. Therefore, the evidence is against finding the Veteran suffered deficiencies in most areas or total impairment from anxiety/adjustment disorder to warrant a higher rating. 2. A rating in excess of 10 percent for hypertension Hypertension is rated under the rating schedule for the cardiovascular system, 38 C.F.R. § 4.104, DC 7101. A compensable, 10 percent rating requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. For a 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. Any higher rating requires higher diastolic pressure readings. 38 C.F.R. § 4.104, DC 7101. The Board has reviewed the record and finds the Veteran's hypertension did not meet the criteria for a rating in excess of 10 percent. See 38 C.F.R. § 4.104, DC 7101. A review of the Veteran's treatment records does not show any record of diastolic blood pressure 110 or more or systolic blood pressure 200 or more, much less a predominance of such pressure. Instead, the record shows blood pressure readings most often between 70 and 100 for diastolic pressure and between 120 and 190 for systolic pressures. During VA treatment in August 2011, the Veteran reported at home readings in the 140/95 range, and in May 2013, he reported at home readings of 130/70, which are consistent with the other evidence. The highest readings of record are three readings showing 184/107, 179/105, and 184/107 in March 2012 and multiple readings taken in early August 2013, including two of 192/101. In correspondence to VA, the Appellant noted that the Veteran was taking medication for his hypertension and had blood pressure readings between 165/95 and higher. The 10 percent rating assigned compensates for diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, and required continuous medication for control of hypertension. However, the evidence does not show a predominance of systolic pressures 200 or more or diastolic pressures 110 or more to satisfy the criteria for a 20 percent or higher rating. 3. A rating in excess of 10 percent for transient ischemic attack The Veteran's history of transient ischemic attack is rated under Diagnostic Code 8008 for thrombosis of the brain vessels. Diagnostic Code 8008 provides for a 100 percent rating for six months after an episode and then to rate the residuals under appropriate diagnostic codes with a minimum 10 percent rating. 38 C.F.R. § 4.124a, DC 8008. After reviewing the evidence, the Board finds the criteria for a rating in excess of 10 percent for transient ischemic attack have not been met. See 38 C.F.R. § 4.124a, DC 8008. First, the evidence does not show the Veteran had a transient ischemic attack during the claim period or within six months prior to his claim for service connection to warrant a 100 percent rating. Treatment records during the claim period do not show treatment for a stroke, or transient ischemic attack. A February 2010 private record notes a prior history of transient ischemic attack, which shows the incident occurred well over a year before the claim. Next, the evidence does not show residual symptoms or impairment that could be rated under other diagnostic codes. An August 2011 VA treatment record shows history of transient ischemic attack and cerebral infarction without residual deficits. In April 2017 correspondence, the Appellant asserted that the Veteran had brain abnormalities seen on EEG. The Appellant has not identified the source of that EEG, and the Board has not found records of diagnostic testing revealing abnormalities in the brain. Instead, CT scan and MRI of the brain conducted in August 2013 revealed mild white matter changes consistent with microvascular ischemic disease but no intracranial acute abnormality or significant high or low intensity abnormality within the brain parenchyma, brainstem, or cerebellum. Moreover, the Veteran's treatment records do not identify or discuss any residuals from the transient ischemic attack, and the Appellant has not identified any specific symptom or impairment attributable to the transient ischemic attack. Accordingly, the evidence does not show residual symptoms or impairment, and the minimum 10 percent rating for transient ischemic attack is most appropriate. 4. A rating for cutaneous polyarteritis nodosa The Veteran's cutaneous polyarteritis nodosa has been rated under Diagnostic Code 7821 for cutaneous manifestations of collagen-vascular diseases not listed elsewhere. 38 C.F.R. § 4.118, DC 7821. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7821, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or; at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7821. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. After resolving doubt in the Appellant's favor, the Board finds the criteria for a 60 percent rating for cutaneous polyarteritis nodosa have been met. See 38 C.F.R. § 4.118, DC 7821. The evidence shows the Veteran's cutaneous polyarteritis nodosa required near-constant treatment with immunosuppressive drugs. In April 2017 correspondence, the Appellant wrote that the Veteran had been treated with Prednisone and pain medications for cutaneous polyarteritis nodosa since 1986 but was switched to Remicade infusions and Humira for about one and a half years and returned to Prednisone prior to his death. Records show the Veteran was prescribed Prednisone and/or Humira on a near-constant basis from 2011 to 2013. In an April 2011 letter, Dr. TA wrote that the Veteran was on Prednisone for polyarteritis nodosa until he was started on Humira for colitis. In a September 2020 letter, Dr. MM noted that the Veteran had been on steroids for polyarteritis nodosa, which is an autoimmune disorder, but was subsequently put on Humira and Remicade for his Crohn's disease. Dr. MM further explained that Humira and Remicade are immunosuppressant medications that also treated his polyarteritis nodosa. In light of this evidence, the Board finds the Veteran took immunosuppressant medications near-constantly to treat his cutaneous polyarteritis nodosa, and a 60 percent rating is warranted. Sixty percent is the highest schedular rating under Diagnostic Code 7821 and the General Rating Formula for the Skin. The Veteran's disability did not affect his head, face, or neck to allow for a rating in excess of 60 percent. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.