Citation Nr: 1753901 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-43 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 70 percent disabling for panic disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Jobe, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 2003 through April 2003, and again in August 2005 through July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying the claim of entitlement to an evaluation in excess of 70 percent for a service-connected panic disorder. The Veteran appealed this decision to the Board in October 2010. In July 2016, the Board issued a remand directing the RO to obtain Social Security Administration (SSA) records and seek another psychological examination of the Veteran as three years had lapsed. The Board notes that in a March 2011 Rating Decision the Veteran received 100 percent total disability based on individual unemployability (TDIU) effective July 1, 2010. This case was processed using VBMS. A review of the Veteran's electronic claims file reveals that SSA records from April 2010 through August 2013 have been obtained. FINDING OF FACT The Veteran's panic disorder is manifested by total occupational and social impairment due to symptoms such as frequent panic attacks, insomnia, social isolation and an intermittent inability to perform activities of daily living, including maintaining personal hygiene. CONCLUSION OF LAW The criteria for a disability rating in excess of 100 percent for panic disorder have been met. 38 U.S.C. §§ 1155, 5101, 5103, 5107 and 5110 (2012); 38 C.F.R. §§3.159, 3.321, 3.400, 4.1, 4.3, 4.6, 4.125, 4.126, 4.130, Diagnostic Code 9412 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Notice In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). Background The Board has reviewed all of the evidence in the Veteran's file, including VA treatment records, SSA records, examination reports, and lay statements. In response to the Veteran's 2007 claim for service connection, the RO granted a 30 percent disability rating for the panic condition due to symptoms of anxiety and panic attacks. The Veteran's disability evaluation was increased to 70 percent in an August 2008 rating decision, effective as of May 27, 2008. In March 2010, the Veteran was afforded a VA examination. On examination the Veteran reported that he forgot to take his morning psychiatric medications, and that irrational thoughts triggered panic attacks where his heart began racing in his chest. The Veteran noted to the examiner that he was unemployable as a result of panic attacks but still had the desire to work, but nobody would hire him due to knee problems. He also noted that he stopped working as a Certified Nursing Assistant (CAN) because he could not control his anxiety without prescribed medication, but he would not take this medication because he believed it would impair his judgment with elderly patients. The examiner explained that an opinion could not be provided as related to unemployability because it could not be clearly determined if the current symptoms were due to lack of motivation for change or due to ineffectiveness on the part of the psychotherapeutic treatment. In addition, the Veteran was evaluated in sleep therapy, and recommended to attend a sleep hygiene group. The Veteran did not follow this recommendation. Therefore, it was unclear whether or not that if the Veteran was compliant with his medication regimen and his recommended therapy whether his condition might improve. A private physician with the initials L.S. completed a mental assessment form in March 2010 finding the Veteran had poor ability to deal with the public and remember complex job instructions. He was also poor at dealing with work stresses, maintaining attention/concentration, maintaining personal appearance and behaving in an emotionally stable manner. The Veteran would get severely anxious at times interfering with his ability to do his job. However, the Veteran could understand, remember and carry out simple job instructions and was noted to have a fair ability to demonstrate reliability. Dr. L.S. concluded that the Veteran was totally disabled psychiatrically and was unable to be employed in any capacity. It was noted that the Veteran would go days without showering due to lack of energy and had insomnia due to severe knee pain and difficulty getting out of bed and leaving his house. In July 2010, the Veteran filed a timely notice of disagreement appealing the denied increase rating for his panic disorder as well as making a new request for TDIU benefits. The Board recognizes the Veteran was already receiving special monthly compensation, and the TDIU was granted effective July 2010. In connection with this application a June 2010 VA treatment record noted that the Veteran had received Social Security Administration (SSA) benefits retroactive to January 2009. According to a September 2013 VA examination report, the Veteran appeared to demonstrate total occupational and social impairment as a result of his psychiatric disability. Even under minimal conditions, the demands and pressures associated with daily living, coupled with the chronic nature of the disability, would probably cause an increase in both the complexity and severity of these impairments. It was noted that from a clinical perspective, improvement is not likely to occur and cannot be realistically expected is not likely to occur and the probability of permanent improvement under treatment is considered remote. The Veteran was suffering from panic attacks three to four times per week lasting 30 minutes to several hours, significant anxiety when driving, significant anxiety in crowds, agoraphobia, being easily overwhelmed, fluctuations between hypersomnia and insomnia, fatigue, depressed mood, neglect of personal hygiene and other symptomatology. He also had an intermittent inability to perform activities of daily living. It was also noted that a recent psychiatric note from June 2013 noted that the Veteran should be considered totally and permanently disabled due to his severe panic disorder and major depression. It was determined that the Veteran could not be gainfully employed in the foreseeable future. In May 2010, SSA reviewing medical doctors noted that the Veteran suffered moderate impairment in activities of daily living, social functioning and marked restrictions in concentration, persistence and pace. However, the Veteran could follow, retain and carry out simple instructions, and work only occasionally with others. In an August 2013 statement, the Veteran's father noted that the Veteran lived nearby both parents. He was not dating but was on good terms with his ex-wife. He described that his son visits his friends on weekends, and will occasionally come to the parents' house, but will leave if anyone else is visiting at the same time. The Veteran, and his father, reported that he can perform activities of daily living but is "skiddish" about leaving the house. The Veteran underwent the most recent VA examination in March 2017. The examiner reviewed the SSA records, the VA records, and personally evaluated the Veteran. The mental status examination presented overall normal, with no suicidal/homicidal ideation. The Veteran denied hallucinations, delusions, and no severe deficiencies were noted in memory or concentration. The examiner opined that the Veteran suffered only mild impairments in performing simple tasks, but more moderate impairments in concentrations and marked impairment in dealing with others. She also noted that the Veteran's physical impairments exacerbated his mental condition. The examiner concluded that the Veteran's service-connected psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood. The examiner did not find evidence of total occupational and social impairment as of this time. It was noted that the Veteran lived alone and that he was separated from his wife. He reportedly remained friends with her however. It was further noted that the Veteran had not worked since 2008 after having to stop working due to the medications he was taking for his anxiety. The Veteran suffered from anxiety with panic attacks (1-2 times per day when at home and 3-4 times per day when out). He also suffered anxiety while driving. He felt calmer when hanging out with his friend's children. He also suffered from chronic sleep impairment and decreased concentration. The examiner concluded that the Veteran had near-continuous panic or depression affecting the ability to function independently, appropriately and effectively and he had difficulty in establishing and maintaining effective work and social relationships. Analysis Having reviewed the above evidence in a light most favorable to the Veteran, the Board finds that a disability evaluation of 100 percent is warranted for the Veteran's service-connected panic disorder. The General Rating Formula for Mental Disorders, including Diagnostic Code 9412, at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities: A 70 percent rating contemplates 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating contemplates 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. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising 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(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2017). In the present case, the Veteran has exhibited a number of symptoms, including sleep impairment, depressed mood, and lack of energy, diminished hygiene, diminished interest in activities and an inability to establish and maintain effective relationships. The September 2013 VA examiner and the Veteran's private psychiatrist concluded that the Veteran's symptoms resulted in total occupational and social impairment and any chance of long-term improvement with continued treatment was remote. The Board recognizes that the Veteran was not found to be suffering from total occupational and social impairment upon examination in March 2017 and that the record does reflect that the Veteran maintains contact with some friends. However, despite this finding, the March 2017 VA examiner did note that the Veteran's symptoms were of such severity as to result in near-continuous panic affecting the ability to function independently, appropriately and effectively. He also had difficulty in adapting to stressful circumstances, including work or a work-like setting. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptomatology noted upon examination in March 2017, along with the opinions of the Veteran's private psychiatrist and the September 2013 VA examiner, suggest that the Veteran does suffer from total occupational and social impairment as a result of his service-connected panic disorder. The claim is granted. ORDER Entitlement to an evaluation in excess of 70 percent for panic disorder is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs