Citation Nr: 21015962 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-14 964 DATE: March 18, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for mechanical lumbar strain is denied. Entitlement to a disability rating in excess of 50 percent for a psychiatric disability, to include obsessive compulsive disorder (OCD) and generalized anxiety disorder (GAD) is denied. FINDINGS OF FACT 1. After being afforded appropriate notice of examination, the Veteran canceled the November 2019 examination in conjunction with her claim for an increased rating for mechanical lumbar strain, and therefore, failed to appear for a scheduled VA examination. 2. For the entire period on appeal, the Veteran’s psychiatric disability, to include OCD and GAD, has not been manifested by a total social and occupational impairment or social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The claim for entitlement to a disability rating in excess of 10 percent for mechanical lumbar strain is denied as a matter of law, based on the Veteran's failure to report for a VA examination. 38 U.S.C. §§ 1155, 5107 ; 38 C.F.R. § 3.655 (b). 2. The criteria for a disability rating in excess of 50 percent for a psychiatric disability, to include ODC and GAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from January 1999 to May 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In April 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. Now the matters are returned to the Board. Failure to Report for Examination The Veteran is seeking a higher disability rating in excess of 10 percent for her service connected lumbar spine disability and in excess of 50 percent for her psychiatric disability. During the August 2018 Board hearing the Veteran competently testified that both her lumbar spine disability and psychiatric disability had worsened during the appeal period. Consequently, in April 2019, the Board remanded the issues of entitlement to increased disability ratings for the Veteran to be afforded VA examinations. In October 2019, a telephonic attempt was made to schedule the Veteran’s VA examination. See Topeka VA Medical Center (MC) treatment record, dated October 25, 2019. Thereafter, also in October 2019, a letter was sent to the Veteran's Nebraska address with notice that she was being scheduled for a VA examination. See Subsequent Development Letter, dated October 25, 2019. The letter provided information related to the requirement of attendance at the examination, requests to cancel or re-schedule, and the consequences of failure to attend without good cause. The October 2019 letter was not returned as undeliverable. In November 2019, the contracted examination for the Veteran’s lumbar spine disability was canceled with a notation that indicated it was done at the Veteran’s request. See Exam Cancellation, dated November 1, 2019. The Veteran attended a VA psychiatric examination that was also scheduled in conjunction with the matters on appeal. See Mental Disorders VA examination, dated November 14, 2019. Although a copy of the examination notice is not contained in the Veteran's file, the Board notes that absence of copies of the VAMC examination scheduling letters in the claims file does not preclude application of the presumption that the Veteran received proper notice. See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). VA enjoys a "presumption of regularity" that "supports official acts of public officers" and "allows courts to presume that what appears regular is regular." Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001); see Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Wise v. Shinseki, 26 Vet. App. 517, 525 (2014). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. See, e.g., Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision); Crain v. Principi, 17 Vet. App. 182, 186 (2003) (RO's mailing of a Statement of the Case); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (RO's mailing of an application for dependency and indemnity compensation (DIC)); Davis v. Brown, 7 Vet. App. 298, 300 (1994) (Board's mailing of a copy of its decision). For the following reasons, that presumption has not been rebutted in this case. The November 2019 examination cancellation reflects that the Veteran requested cancellation; no reason was given. A May 2020 Supplemental Statement of the Case (SSOC) informed the Veteran that VA received her request to cancel the examination, and she has not responded to the SSOC. Additionally, in the February 2021 brief to the Board, the Veteran's representative did not dispute the cancellation or otherwise provide any reasons for the Veteran's failure to report to her scheduled examination. There has been no allegation of nonreceipt of the notice, and even such assertion of nonreceipt alone does not constitute clear evidence to rebut the presumption of regularity. See Miley v. Principi, 15 Vet. App. 97 (2001). Given the presumption of regularity of the mailing of the VA examination scheduling notice and the fact that the Veteran has not provided a reason for her cancelation, the Board is satisfied that the Veteran received notice of the examination and failed to report to the scheduled VA examination without good cause. Under 38 C.F.R. § 3.655 (b), when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied. Accordingly, as the Veteran failed to appear for an examination scheduled in conjunction with the claim for an increased rating for mechanical lumbar strain must be denied. See 38 C.F.R. § 3.655 (b). Increased Rating The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). In this case, the Veteran is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). She is also competent to report symptoms of her psychiatric disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe her symptoms and their effects on employment or daily activities. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 1. Psychiatric Disability, to include Obsessive Compulsive Disorder and Generalized Anxiety Disorder The Veteran currently has a 50 percent disability evaluation for the period from January 9, 2013 for obsessive compulsive disorder with generalized anxiety tendencies under diagnostic code 9411. Psychiatric disabilities other than eating disorders are rated pursuant to the criteria for General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a noncompensable rating is warranted when a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication A 10 percent evaluation is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires 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 affected 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); and inability to establish and maintain effective relationships. A 100 percent rating is assigned 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. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. The use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. When evaluating the level of disability from a mental disorder, the rating agency 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. 2. Factual Background and Analysis On April 29, 2014, the Veteran submitted a claim asserting entitlement to a rating in excess of 50 percent for her psychiatric disability due to worsening symptoms. In a May 2014 statement, the Veteran’s mother expressed concern about the Veteran’s health, including her extreme anxiety. Her mother reported that the Veteran was constantly worried that someone will attack her children or kidnap them from their home while sleeping. The Veteran underwent a VA examination in June 2014. The Veteran reported having a good relationship with her husband, children and family that lived in the area. She indicated socializing with a group of approximately six friends that all meet up every few months, if family obligations do not interfere. She worked full times as an administrative assistant and reported no issues with attendance and doing fine with co-workers and superiors. The examiner indicated the Veteran was maintained on daily anti-anxiety medication, although it was prescribed on an “as needed” basis. She was also noted to have been absent from therapy for three years. The examiner described the Veteran's symptoms as anxiety, panic attacks occurring more than once a week, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The examiner found the features of the Veteran’s obsessive compulsive disorder with generalized anxiety psychiatric disability remained essentially the same and a no additional diagnosis was provided. The examiner summarized the Veteran’s level of occupational and social impairment as with reduced reliability and productivity. In the September 2014 Notice of Disagreement (NOD) the Veteran asserted that her psychiatric symptoms resulted in a high degree of occupational and social impairment that resulted in deficiencies in most areas. She noted an inability to attend meetings at work when she was the focus of attention because panic attacks made her sweaty, light-headed, and confused. She reported feeling unreliable and unpromotable at work with an inability to maintain good working relationships with most co-workers. The Veteran indicated that she becomes anxious at work if the supplies on her desk are not organized properly, and she fears getting fired if anything is out of place. She also noted anxiety during social activities and reported giving up her Sunday school teaching assignment out of fear that a parent would criticize her. The Veteran noted that her obsessive compulsion and anxious tendencies often caused delays when leaving the house as she checked and rechecked electric cords and fluffed sofa pillows in a certain manner, which often frustrated her family. See NOD, received September 8, 2014. During the March 2015 RO hearing, the Veteran reported that her psychiatric condition was at a 10 out of 10. She described severe anxiety and obsessive worry over her children. For example, her mother was not allowed to take them to the grocery superstore 15 miles away because something bad would happen. She also worried that a backpack was not properly zipped up and homework would fall out, causing the child to get into trouble with the teacher. The Veteran also reported anxiety related to daily tasks and noted ritualistic behavior that must be performed before leaving the house to ensure her home will not burn down. The Veteran was not attending individual counseling because she knows the counselors at the nearby location, but she noted that her husband is a good listener and tries to understand. See March 2015 RO Hearing Transcript at 22. In August 2017, the evidentiary record illustrates the Veteran returned to psychiatric care at VA. The Veteran reported her mood was irritable, anxiety was worse without medication, and her stressors were the effects of her psychiatric disability. The provider performed a mental status examination, noting the Veteran was well-developed and well-nourished, had good eye contact, was oriented to time, place, person and situation, and her memory was intact. The Veteran’s attention span and distractibility were as expected for her age. There were no racing thoughts described, and her mood was dysphoric. The Veteran denied any suicidal or homicidal ideas or plans. The provider diagnosed uncontrolled OCD, moderate. Thereafter, the Veteran was prescribed psychotropic medications. A March 2018 neuropsychological assessment was performed for the Veteran at Leavenworth VA Medical Center (VAMC). The Veteran was temporally oriented and basic attention and auditory vigilance were intact. The Working Memory Index was in the average range. Delayed memory was average, and her depression score was not elevated. Symptoms of mild anxiety was reported. Performance on a task requiring focused attention was borderline, while she demonstrated low average registration of a word list, low recall of the information after both a brief and a lengthy delay, and borderline recognition. The examiner found the Veteran was likely to have periodic difficulty with aspects of attention and components of memory but opined it was due to anxiety and/or OCD symptoms. At the August 2018 Board Hearing the Veteran testified her psychiatric symptoms were always daily but had worsened in severity. She referred to herself as “kind of [a] hermit.” See August 2018 BVA Hearing Transcript at 9. At work, she reported benefitting from a lengthy employment history because co-workers were aware of her history and made accommodations. The Veteran reported feeling embarrassed when a co-worker questioned why she does not use red-colored office supplies, and the Veteran did not explain that she worries it will cause her home, car, or something else to catch fire. She noted chronic sleep issues, explaining she cannot go to sleep unless the all the pillows in the home are fixed a certain way and has weekly nightmares about her children dying. In an August 2018 statement, the Veteran’s spouse explained that the Veteran has excessive and constant fear about safety. He indicated her behavior can appear rude when she makes up excuses to stay home instead of going out with friends because she has worried about all the bad things that might occur. Anxiety over the children during an out of town engagement party led the Veteran to retreat to the room. The Veteran’s spouse relayed details of the Veteran’s evening routine to ensure the home and children are safe, which includes checking the locks, putting blankets on the kids a certain way, straightening a rug, and flicking the outside lights off and on four times. The Veteran’s spouse indicated he must promise to perform the routine at least twice a week when his wife takes a sleep aid, otherwise he reports she does not sleep. In addition, the Veteran’s spouse also expressed concern about the Veteran’s memory issues, such as of forgetting grocery items or mixing up words, and how medication masks her feelings. In September 2019 the Veteran began treatment at Arbor Psychiatric and Wellness Center. The Veteran’s primary concerns were focus, attention, racing thoughts, anxiety, and increased irritability. The examiner obtained a full history from the Veteran, who reported stopping all prescribed medication in March 2019. The Veteran reported full-time employment as a medical staff coordinator and nurse on the ambulance crew. She participated in spiritual activities and had interests in music, reading, volleyball, and family activities. She considered organization and being a good mother her strengths and believed weaknesses were hovering and being overly. Moderate stress was reported in the area of family and health concerns; mild stress in the area of educational concerns; and no stress in the area of friends, relationships, economic, occupational, housing, and legal concerns. The Veteran was fearful that her inability to keep thoughts and tasks organized would affect her success in school. See Arbor Psychiatric and Wellness Center treatment record, received April 30, 2020 The September 2019 provider at Arbor Psychiatric and Wellness Center performed a mental status examination and noted the Veteran was appropriately dressed and maintained good eye contact. The Veteran’s behavior was cooperative with speech at a normal rate and normal psychomotor activity. Her mood was identified as sad and/or depressed, anxious, and irritable with affect that was congruent. The Veteran’s thought process was organized and goal directed, with intact judgement and insight. Further, the Veteran maintained orientation to time, person, place, and space with no deficit in memory, attention, or language. Suicidal or homicidal ideations were denied. The Veteran was prescribed the stimulant, Adderall XR, to target her attention deficit hyperactivity disorder symptoms. See Arbor Psychiatric and Wellness Center treatment record, received April 30, 2020. During a November 2019 counseling session at Arbor Psychiatric and Wellness Center, the Veteran felt she functioned better on the Adderall. She reported that it works well all day but noticed it tapered off later in the afternoon, when she would struggle to stay focused and found herself becoming easily frustrated and irritated. The Veteran reported her weight was stable and she had been sleeping generally well. Overall, the Veteran reported her mood was stable and she felt like her attention was much better. The Veteran’s ability to complete tasks was good and she was looking forward to starting an accelerated school program in January. The Veteran denied suicidal or homicidal ideations, and no symptoms of psychosis were reported. No changes were made to the Veteran’s prescriptions. See Arbor Psychiatric and Wellness Center treatment record, received April 30, 2020. The Veteran underwent a November 2019 VA examination, and was diagnosed with OCD and GAD. The examiner reviewed the Veteran’s medical history and performed a mental health assessment. Overlapping symptoms, including worry, nervousness, restlessness, sleep disturbance, and physiological symptoms such as, sweating, shortness of breath, and racing heart, made it impossible for the examiner to determine which concerns were attributed to the individual conditions. During the November 2019 VA examination, the Veteran indicated her marriage was great and they communicated well, and she also described the relationship with her children as very good. The Veteran reported no contact with her mother in four years because she finds her irresponsible and disapproves her drug use. The Veteran maintained close contact with one sister and spoke to her daily but has not spoken to another sister since she divorced and abandoned her kids. There are five or six close friends the Veteran texted weekly and met for get-togethers every three months. The Veteran reported working in administrative credentialing at the hospital for ten years and had a balance in her leave account. She received positive performance evaluations and denied any disciplinary problems. The Veteran reported occasional reckless driving and impulsive spending that is out of her character. The examiner observed that she was on-time and appropriately dressed for her appointment. Eye contact was good, and her speech was normal in rate, volume, and tone. The Veteran was not fidgety or restless and was noted to relate information in an earnest and somewhat anxious manner. Her symptoms were identified as anxiety, panic attacks that occur weekly or less often, and chronic sleep impairment. Her thought process was logical and generally organized, with no observable perceptual disturbances, such as hallucinations. The examiner summarized the Veteran's occupational and social impairment level as 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 preponderance of the evidence is against a rating in excess of 50 percent, as the weight of evidence is against a finding that the Veteran's psychiatric disability resulted in total social and occupational impairment or occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that the Veteran's psychiatric disability is characterized by the following signs or symptoms: worry, uneasiness, irritability, sleep impairment, fear of the worst happening, compulsive behavior, panic attacks, and impaired impulse control. The frequency, duration, and severity of the Veteran’s symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent disability rating. The evidence of record does not show that during the period on appeal the Veteran's psychiatric disability was manifested by such symptoms as; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s occupational functioning appears only mildly affected due to diminished focus, concentration, and worry; she continues full time employment with positive performance appraisals and no reports of missed work attributed to a psychiatric disability. She was noted to be well-groomed and on-time at medical appointments. The Veteran is actively pursuing advanced education in an accelerated program and maintains good judgment and thought processes. Her social functioning does not appear to be significantly affected, as she maintains close family relationships and several friendships. Of note, the November 2019 VA examiner opined that the Veteran's psychiatric symptoms resulted in an occupational and social impairment level 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. This would equate to a 30 percent rating under Diagnostic Code 9411. However, the evidentiary record including the Veteran’s and her spouse’s credible reports of symptom frequency, duration, and severity, which illustrate that the compulsions cause the Veteran to lose focus, delay routine tasks, and alter planned activities. As such, and in consideration of the entire record and not solely the examiner’s opinion at the time of examination, the Veteran exhibits reduced reliability and productivity. 38 C.F.R. § 4.126. In light of the above, the Board finds that at no time during the appeal period was the Veteran's psychiatric disability, including OCD and GAD, manifested by a total social and occupational impairment or social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The criteria for a finding in excess of a 50 percent disability evaluation are not met, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Gipson, 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.