Citation Nr: 0003151 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-09 953A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for arthritis of the cervical spine, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for panic disorder and anxiety, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for chronic obstructive lung disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1976 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO) which continued 10 percent disability ratings for arthritis of the cervical spine and for panic disorder and anxiety, and proposed to reduce a rating for chronic obstructive lung disease from 10 percent to noncompensable. During the pendency of this appeal the RO withdrew its proposal to reduce the rating for chronic obstructive lung disease and continued the 10 percent rating. The Board addresses this issue and the issue pertaining to arthritis of the cervical spine in the REMAND portion of this decision. FINDING OF FACT The veteran's service-connected panic attacks and anxiety are manifested by symptoms that more closely approximate 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, but not by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for panic attacks and anxiety have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.130, Diagnostic Code 9400 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A claimant for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claims for increased ratings based upon alleged increases in the severity of his service-connected disabilities are well grounded. Once a claimant presents a well-grounded claim the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts pertaining to an evaluation for panic attacks and anxiety has been properly developed, and that all evidence necessary for equitable resolution of these issues on appeal is of record. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The RO first granted service connection for panic disorder and anxiety in June 1995 pursuant to Diagnostic Code (DC) 9400. In accordance with the general rating formula contained in 38 C.F.R. § 4.130, panic disorder and anxiety is evaluated as follows: 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 [10 percent]. 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) [30 percent]. The first medical evidence of record pertaining to the veteran's psychological status following his separation from service is included in reports of two VA examinations in February 1995. The physician who conducted a general medical examination noted that the veteran was fully oriented and in good contact with reality, showed good comprehension, mental coherence and short- and long-term memory with no evidence of psychotic or neurotic symptomatology. The physician who conducted a "mental disorders" examination reported the veteran's complaints of in-service panic attacks initiated by public speaking and of a limited post-service social life. The veteran also reported that medication ameliorated the effects of his disorder and that his routine activities included long-term, steady employment as a mail carrier, participation in his children's' school activities, continuing his education, writing, and working on his boat. The examiner also noted that the veteran demonstrated appropriate grooming and hygiene, logical and goal directed speech, full orientation, intact long- and short-term memory and judgment, and adequate insight. There was no evidence of delusions, hallucinations or suicidal or homicidal ideations. The examiner opined that with continued treatment panic disorder symptoms should continue to be minimal and that the veteran's ability to continue work, education and a family routine was indicative of no more than mild incapacity. In December 1996 the veteran underwent a private mental health screening during which he reported a long history of tension, anxiety and intermittent panic attacks since 1985, and current depression. Objective findings included rational and clear thought processes and a tense and anxious affect. The veteran reported sleep impairment, lack of appetite and some problems with concentration but no suicidal ideation. He remained employed. The examiner provided a provisional diagnosis of possible dysthymic disorder and a history of panic disorder and assigned a Global Assessment of Functioning (GAF) score of 55 with a high score of 65 over the prior year. A report of an August 1997 VA "mental disorders" examination noted the veteran's complaints of mental health problems, including anxiety attacks and occasional panic attacks, for which he took medication. He remained employed but found his work stressful. He reported having been married to his second wife for 17 years and having helped raise two children with her. The veteran also reported occasional forgetfulness, generalized depression and moodiness, as well as a constricted social life because his wife works nights, although the examiner noted that he mixed with other people and was not a recluse. The veteran denied hallucinations, delusions, paranoia, phobias, crying spells, suicidal ideation or wide mood swings. Objective findings included good grooming and hygiene, cooperative attitude, full orientation, adequate memory and concentration, good energy, appropriate affect and fair judgment and insight. The examiner diagnosed generalized anxiety with underlying depression and a history of panic attacks and described the veteran's incapacity as moderate. The examiner also assigned a GAF score of 70 because of the veteran's ability to maintain regular employment and to manage his family and personal life. The veteran described his employment with the Postal Service as stressful and stated that his mental disorder had caused him to forget to perform some of his duties and to miss too much work. In support of this assertion the veteran submitted copies of two letters from his supervisors. A letter dated in September 1997 charges the veteran with unacceptable performance for having failed to perform one of his assigned duties. A second letter dated in February 1998 informed the veteran that he was on restricted sick leave and would have to provide detailed medical documentation before being permitted further sick leave. Neither letter mentions a psychiatric disorder. No medical evidence associated with the claims file addresses the letters or their substance. In consideration of the foregoing the Board is of the opinion that the veteran does not manifest symptoms appropriate for an evaluation in excess of 10 percent for panic disorder and anxiety. The medical evidence and the veteran's own statements demonstrate the veteran's substantially unimpaired occupational and social capacities and no more than mild social or industrial impairment. Notwithstanding the "write-ups" from his employer, the veteran has shown himself capable of continued long-term employment. He has maintained close and sustained family relationships with his wife and children, social contacts outside the family, and he has demonstrated avocational interests including writing, continuing his education and working on his boat. In short, the veteran presents a picture of a relatively well- integrated, emotionally engaged and varied life not consistent with the relative psychological poverty consistent with a higher rated mental disorder. Moreover, the record includes very little medical evidence confirming symptomatology indicative of even mild, occasional or intermittent occupational or social impairment. The Board also notes that none of the health care professionals whose reports of post-service examination are associated with the claims file actually provided objective confirmation of the panic attacks for which the veteran is diagnosed. Furthermore, although the private psychologist who examined the veteran in December 1996 assigned a GAF score of 55, the psychologist did not associate the relatively low score with panic disorder which is diagnosed only by history. The veteran's most recent GAF score of 70 is attributed to the veteran's service connected anxiety but it is also indicative of no more than some mild symptoms or difficulty in social or occupational functioning consistent with a 10 percent rating. See American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders (Fourth Ed. 1994), adopted by the VA at 38 C.F.R. §§ 4.125 and 4.126. In consideration of the foregoing, the Board finds that the medical evidence shows that a 10 disability rating for panic disorder and anxiety is appropriate. Symptomatology associated with the veteran's panic disorder and anxiety is not shown to more nearly approximate the schedular criteria for the next higher 30 percent evaluation. See 38 C.F.R. § 4.7. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered whether or not they were raised by the veteran, see Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including provisions of 38 C.F.R. § 3.321(b)(1) (1999). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedular standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his panic disorder and anxiety have resulted in marked interference with his employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability evaluation in excess of 10 percent for panic disorder and anxiety is denied. REMAND Regarding the claim for an increased rating for a neck disorder the veteran contends that the RO improperly denied the benefit sought on appeal. He maintains that because of increasing severity of his disability he is entitled to an evaluation in excess of 10 percent for traumatic arthritis of the cervical spine pursuant to DC 5010, the code under which this disorder currently is rated. He further asserts that his last VA spinal examination in August 1997 was inadequate and did not accurately portray his cervical spine symptomatology, and that recurrent pain supports an increased evaluation. As noted above, the Board finds this claim to be well grounded. See 38 U.S.C.A. § 5107(a); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The record contains what appears to be inconsistent evidence as to whether the veteran's cervical spine disorder is accompanied by objectively verifiable pain. The VA examiner who prepared the report of the August 1997 VA spinal examination noted the veteran's complaints of cervical pain but did not identify objective evidence of pain, including pain upon motion. The report notes limitation of cervical spinal motion and mild muscle spasms and diagnoses mild degenerative changes. Subsequent to the VA examination the veteran submitted private chiropractic records documenting treatment for pain in the cervical spine from December 1995 to October 1997. The chiropractic records also note degenerative joint disease and muscle spasms. No examination records comment on a functional loss, if any, resulting from neck pain. The Board notes that VA must consider provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.49 in assigning an evaluation for arthritis under DC 5010, and that rating personnel must consider functional loss and clearly explain the affect of pain upon the disability. VAOPGCPREC 9-98. The veteran also contends that his service connected chronic obstructive lung disease is more disabling than contemplated by the current 10 percent rating. For the reasons cited above, the Board also finds this claim to be well grounded. See 38 U.S.C.A. § 5107(a); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Preliminary review of the available medical evidence discloses insufficient basis upon which to determine to what extent, if any, the veteran may be entitled to an increased rating for chronic obstructive lung disease. For example, although the private physician who provided the most recent pulmonary examination in November 1997 noted moderate obstructive disease based upon pulmonary function tests, there is no objective evidence that the tests measured DLCO (SB) or maximum oxygen consumption - both of which are applicable to evaluation under the current criteria. Therefore, the veteran should be reexamined to determine whether and to what extent there is evidence supporting an increased rating for his service-connected chronic obstructive lung disease. In consideration of the foregoing, the Board has determined that further development of the case is necessary to provide the veteran due process of law and full consideration of this appeal. Accordingly, this case is REMANDED for the following action: 1. The RO should arrange for a VA orthopedic examination to determine the nature and severity of the veteran's cervical spine disorder. All indicated studies must be conducted. The claims file, or copies of pertinent documents located therein, and a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings. Range of motion should be reported in all planes and in degrees and the examiner should express an opinion as to whether the veteran's limitation of cervical spine motion is slight, moderate or severe. The examining physician also should review pertinent aspects of the veteran's medical and employment history, and comment on the effects of the veteran's service-connected cervical spine disorder upon the veteran's ordinary activity and on how it impairs him functionally. The examiner should also specifically comment on the degree of functional loss, if any, resulting from pain on undertaking motion, weakened movement, excess fatigability, or incoordination, as contemplated by DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45 and 4.49 (1999). The rationale for all conclusions should be provided. 2. The RO also should arrange for a VA pulmonary examination to determine the nature and severity of the veteran's chronic obstructive lung disease. All indicated studies must be conducted. The claims file, or copies of pertinent documents located therein, and a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings. The examiner should address each of the rating criteria including pulmonary function tests of FEV-1, FEV- 1/FVC, DLCO (SB) and maximum oxygen consumption, or provide a complete explanation as to why information addressing all regulatory criteria was not or could not be provided. 3. The veteran is advised that failure to report for the scheduled examinations may have adverse consequences to his claim. 38 C.F.R. § 3.655 (1999); Connolly v. Derwinski, 1 Vet. App. 566 (1991). 4. The RO must ensure that all of the aforementioned development action has been conducted and completed in full and, if necessary, implement corrective measures. 4. Thereafter, the RO should readjudicate the veteran's claim for a rating in excess of 10 percent for arthritis of the cervical spine with particular consideration of the provisions of 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45 and 4.49 and for chronic obstructive lung disease. If the RO denies the benefits sought on appeal, it should issue a supplemental statement of the case and provide the veteran with the appropriate time period within which to respond. The RO then should return the case to the Board for final appellate consideration. The purpose of this REMAND is to obtain additional development, and the Board does not now intimate an opinion, either favorable or unfavorable, as to the merits of the case. Although the veteran need not take further action until so notified by the RO, the veteran may submit to the RO additional evidence and argument pertaining to this remand. Kutscherousky v. West, 12 Vet. App. 369 (1999). JOHN R. PAGANO Acting Member, Board of Veterans' Appeals