Citation Nr: 1754174
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 14-11 973 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUE

Entitlement to a rating in excess of 70 percent for anxiety disorder.

REPRESENTATION

Appellant represented by: Jan Dils, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

James R. Siegel, Counsel

INTRODUCTION

The appellant is a Veteran who served on active duty from November 1993 to May 1995. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for anxiety disorder. In July 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In October 2015, this matter was remanded by the Board for additional development. A March 2017 increased the rating to 70 percent, throughout (from February 2012).

The Board’s October 2015 decision also noted that the issue of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) was raised by the record and directed the RO to develop and adjudicate such claim. A March 2017 rating decision granted TDIU, effective October 2012, resolving the matter.

FINDING OF FACT

At no time under consideration are symptoms of the Veteran’s service connected psychiatric disability shown to have resulted in total occupational and social impairment.

CONCLUSION OF LAW

A scheduler rating in excess of 70 percent for anxiety disorder is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § § 4.130, Diagnostic Code (Code) 9413 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

The VCAA, in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA’s duty to notify was satisfied by a letter in March 2012. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veteran’s VA and private medical records have been secured. He was afforded VA examinations to assess the severity of his psychiatric disability. VA’s duty to assist is met.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires a VLJ who conducts a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the July 2015 hearing, the undersigned identified the issue, and advised the Veteran of what is needed to substantiate his claim. A hearing notice deficiency is not alleged.

The Board also finds that there has been substantial compliance with the October 2015 Board remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Factual Background, Legal criteria and Analysis

The Board has reviewed all of the evidence in the Veteran’s record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or does not show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
On April 2012 VA psychiatric examination, the Veteran stated that he had four to twenty episodes of anxiety daily. He said that he was constantly on edge and experienced sleep disturbances. Examination found that he had anxiety. There was no evidence of depressed mood; suspiciousness; panic attacks; memory loss’ flattened affect’ impaired judgment; disturbance of mood and motivation; gross impairment of thought process; suicidal ideation; obsessional rituals; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance or hygiene; or disorientation to time or place. The diagnoses were anxiety disorder, not otherwise specified and rule out substance induced anxiety disorder. The Global Assessment of Functioning (GAF) score was 65. The examiner stated that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.

VA outpatient treatment records show that in November 2012, the Veteran was noted to be well-groomed. Mood was euthymic and affect was congruent to mood. Thought process and thought content were logical and goal-directed. There was no suicidal or homicidal ideation. He denied audio or visual hallucinations. No delusions were elicited, and there was no paranoia. The assessment was opioid dependence. In February 2013, he was appropriately groomed. He was oriented times three. Thought process and content were logical, coherent and relevant. His mood was restricted. His insight was poor; his judgment was intact. He became tearful when describing the shame he felt regarding his family, legal and financial issues. There was no psychomotor retardation. The examiner stated that his agitation might be related to substance withdrawal. No unusual perceptual experiences were reported or observed. In February 2014, the Veteran’s hygiene was noted to be fair. His mood was euthymic and affect was congruent to mood. Thought process was logical and goal-directed. There was no looseness of association, or flight of ideas or reference. He denied suicidal or homicidal ideation. No delusions were elicited, and there was no paranoia. There were no audio and visual hallucinations. His insight and judgment were fair, as was impulse control. He denied suicidal ideation. In May 2014, he was described as alert, cooperative and well-oriented to person, place, situation and time. His mood was appropriate to the topic of conversation and affect was congruent. His hygiene was adequate. Thought process was linear, organized and goal-directed. Insight and judgment appeared to be intact. There was no evidence the Veteran was responding to internal stimuli. There were no overt delusions in his expressed thoughts. No suicidal or homicidal ideation was noted. The assessment was opioid use disorder.

On November 2015 examination by J. Atkinson, Jr., a private psychologist, it was noted that the Veteran was not on “mental health” medication. The Veteran stated that he got along well with his girlfriend until they were out in public when he began “stressing out.” He reported he had worked at the Post Office until two years prior (and that he had minor disagreements there). The examiner stated that the Veteran had a very low tolerance for stress and reacted with anxiety and withdrawal. Mental status evaluation found that the Veteran was irritable and passive-aggressive. His concentration was fair and attention span was short. Psychomotor activity was increased. His ability to abstract was mildly impaired. Affect was within normal limits. The Veteran stated that his mood was good if he was by himself, but aggravated when not by himself. He had a number of avoidant personality traits. He said he was depressed most of the week and felt worthless. He denied suicidal ideation. His energy level was low. He reported feelings of agitation and psychomotor pressure due to frustration. He had difficulty when in crowds or among other people because he felt they were judging him critically. He displayed a number of avoidant personality traits, which was a form of widespread social phobia. He denied obsessive thoughts. He had some diffuse paranoid thoughts. He denied hallucinations or delusions. He was well oriented to time, place and person. His memory was broadly intact. He reported nightmares. The diagnoses were adjustment disorder with anxiety and depressed mood, to include chronic anger state disorder, and mixed anxiety with elements of generalized anxiety disorder, panic disorder and obsessive-compulsive disorder. The examiner opined that the Veteran’s [psychiatric] impairment was moderate to severe.

J. Atkinson, Jr. completed the Veteran’s disability benefits questionnaire (DBQ) in November 2015, and indicated that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. His symptoms included depression, anxiety, suspiciousness, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, and impaired abstract thinking. There was no evidence of suicidal ideation; difficulty in establishing and maintaining effective work and social relationships; obsessional rituals; impaired impulse control; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; neglect of personal appearance and hygiene; or disorientation to time or place. The diagnosis was adjustment disorder with anxiety.

On September 2016 VA psychiatric examination, the Veteran stated that he stayed at home and did not go out because he could not deal with people. He had regular contact with his parents and lived with his girlfriend. He said that he was depressed all the time and was often irritable. He stated that he slept approximately three hours per night. His symptoms included depressed mood, anxiety and chronic sleep impairment. His appearance was appropriate. He was alert and oriented in all spheres. Psychomotor activity was unremarkable. Thought process and thought content were unremarkable. There was no suicidal or homicidal ideation or perceptual abnormalities. His mood was depressed and affect was appropriate. Insight and judgment were adequate. The diagnoses were opioid use disorder, alcohol use disorder and unspecified anxiety disorder. The examiner stated that the Veteran had 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.

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

This analysis is undertaken considering the possibility that different ratings may be warranted for different time periods, based on facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007).

A 100 percent rating is warranted for anxiety disorder with 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.

A 70 percent 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Code 9413

In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board’s general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. It was noted the regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular symptoms.

One factor which may be considered is the GAF score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. A score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A GAF score of 41 to 50 indicates serious symptoms and serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep job). See DSM-IV. [Revised VA regulations have incorporated use of DSM-V (which does not provide for use of the GAF scale to identify degree of mental impairment). Inasmuch as this appeal arose prior to such revision, consideration of the GAF scores assigned is not inappropriate.].

At no time is the Veteran’s service connected psychiatric disability shown to have been manifested by symptoms productive of total occupational and social impairment (so as to warrant a 100 percent schedular rating). VA psychiatric examinations in April 2012 and September 2016, as well as the reports by the Veteran’s private psychologist, do not show that he has total occupational and social impairment. While he expressed some paranoid thoughts and was noted to have near continuous panic in November 2015, there was no evidence of delusions or hallucinations, or suicidal ideation and he was fully oriented. VA outpatient treatment records, and VA and private examinations do not show gross impairment of thought processes, delusions or hallucinations, inappropriate behavior or lack of orientation. The record reflects that he tends on his own to activities of daily living (and neglect of hygiene or personal appearance has not been noted); lives with a girlfriend (suggesting ability to maintain personal relationships; and has maintained relations with his parents. Notably, the Veteran’s own private psychologist, noting that he is not on any psychiatric medication, has opined that he has occupational and social impairment with deficiencies in most areas (i.e., less than total impairment), which is consistent with the 70 percent rating assigned.
On the most recent VA psychiatric examination, the examiner opined that the Veteran’s anxiety disorder results in occasional decrease in work efficiency (which certainly does not support a finding of total impairment). And when GAF scores were being used, the score assigned for the Veteran’s psychiatric disability (in April 2012) was 65, reflecting only mild disability. Total occupational and social impairment due to psychiatric symptoms is simply not shown, and a schedular 100 percent rating for the Veteran’s service-connected psychiatric disability is not warranted for any period of time under consideration.

As was noted above, the RO has awarded the Veteran a TDIU rating

ORDER

A rating in excess of 70 percent for anxiety disorder is denied.

____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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