Citation Nr: 21026074 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-30 184 DATE: April 29, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for anxiety disorder is denied. Entitlement to service connection for a back condition is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s anxiety disorder manifested with symptoms most closely analogous to occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, but did not rise to the level of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, or mood. 2. The preponderance of the evidence is against a finding that the Veteran has any low back condition that began during active service or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for 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 9413. 2. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Navy from July 1976 to July 1980, and December 1980 to December 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Board sent the Veteran and his custodian a letter notifying them that their previous representative was not accredited by VA. See Correspondence dated April 2018. The Veteran or his custodian have not responded to appoint a new representative. Then in October 2019, the Board remanded the claims for further development. In the decision, the Board notified the custodian and Veteran again that their previous representative was not accredited by VA. See BVA Decision dated October 2019. In November 2019, December 2019, and February 2020, the RO contacted the custodian to locate a telephone number and address of the Veteran. See VA 21-0820 Report of General Information dated November 2019, December 2019, and February 2020. The custodian did not provide the information and the Veteran has not updated the VA. Additionally, in December 2019, the RO sent the custodian a letter asking the Veteran whether he was willing to attend a VA examination for his service-connected psychiatric disability rating and for his back-disability claim. See Subsequent Development Letter dated December 2019. The Veteran or custodian have not responded to multiple attempts to contact them or to schedule an examination for the Veteran. The Board notes that records were obtained as discussed in the October 2019 Board Remand. See CAPRI received December 2019. After a supplemental statement of the case, (SSOC), the claims are back before the Board. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As to the remand, the Board finds that the foregoing reflects substantial compliance with the October 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. Service Connection Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Disability Ratings Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to an initial rating in excess of 50 percent for anxiety disorder is denied. The Veteran contends that he is entitled to an evaluation in excess of 50 percent for service-connected anxiety disorder. The Veteran’s anxiety disorder is rated under Diagnostic Code 9413. 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term 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 when 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran last attended a VA examination in December 2011. See VA Examination received December 2011. At that time, the examiner stated that the Veteran had occupational and social impairment with reduced reliability and productivity due to anxiety disorder. The examiner noted that the Veteran also had occupational impairment due to alcohol dependence. Id. The Veteran symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment. The Veteran was also noted with disturbances of motivation and mood, suicidal ideation, and neglect of personal appearance or hygiene. The Veteran was deemed not able to manage his personal finances due to a long history of alcohol abuse. Id. In October 2013, a social worker completed an assessment. See Capri received May 2014. The Veteran was well groomed, and he behaved appropriately. The Veteran had normal rate and tone of speech. He had appropriate affect and thought processes. He had no suicidal ideation and no homicidal ideation. Id. The Veteran’s treatment records show intermittent treatment for alcohol abuse or symptoms related to alcoholism. The Veteran also was occasionally anxious, but at other times reported no anxiety. See CAPRI December 2019. For example, in March 2017, the Veteran went to the hospital for alcohol abuse, GERD, pernicious anemia, depression, tobacco abuse, and acute pancreatitis. During treatment he was noted with some anxiety. Id. This claim was rated based on the evidence in the records. As discussed above, the Veteran last had a VA examination for anxiety disorder in December 2011. See VA Examination received December 2011. The Board has made attempts to schedule the Veteran for another VA examination. For example, after the October 2019 remand, the RO requested that the Veteran attend an examination. However, the RO was unable to schedule an examination as the Veteran failed to respond. See VA 21-0820 Report of General Information dated November 2019, December 2019, and February 2020. The available treatment records do not support any increase in rating for anxiety disorder. The Veteran’s records do not show that he has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, or mood, due to symptoms of anxiety such as suicidal ideation; intermittently illogical or irrelevant speech; or that the Veteran has near continuous panic or depression affecting his ability to function independently appropriately or effectively. The Board considered the Veteran’s symptoms overall and finds that they have resulted in the type of occupational and social impairment associated with the 50 percent rating. While, the Board notes that suicidal ideation was noted in the December 2011 VA examination, in other records the Veteran denied suicidal ideation. See Capri received May 2014. The Board finds that considering all the evidence the Veteran had occupational and social impairment with reduced reliability and productivity due to anxiety disorder and that the records do not show occupational and social impairment with deficiencies in most areas. Id. The Veteran or custodian have a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, considering the evidence of record, the Board finds that an increased or higher rating is not supported. In conclusion, looking at the record as a whole, the Veteran’s service-connected anxiety was properly evaluated under DC 9413 at 50 percent since September 27, 2011. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 50 percent for the Veteran’s anxiety disorder, the benefit of the doubt doctrine does not apply, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990) 2. Entitlement to service connection for a back condition is denied. The Veteran stated he had a burning in his back from his neck down. See VA 21-4138 received February 2010. However, the Veteran has not provided any other lay statements addressing his back disability on appeal or identifying relevant medical records that might reflect diagnoses. No medical evidence has been associated with the record to support diagnoses of a specific low back disability. The Veteran was offered the opportunity to attend VA examinations. However, the Veteran has not attended any VA examinations for a back condition. See SOC received August 2014; SSOC received April 2015; VA 21-0820 Report of General Information dated November 2019, December 2019, and February 2020; Subsequent Development Letter dated December 2019. While, the Veteran believes that he has a back disability related to an in-service injury, event, or disease, the Veteran, in this case, is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As there is no indication that the Veteran has a present back disability stemming from qualifying active service, an examination is not required for the purposes of adjudication. Here, there is no credible evidence of a present back disability related to active duty service and the Veteran was offered the opportunity to have a VA examination. Therefore, the Board finds that the VA has fulfilled its duty to assist the Veteran with his back-disability claim. Based on the foregoing, the claim of entitlement to service connection for a back condition is denied. The preponderance of the evidence is against the Veteran’s claim; thus, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.