Citation Nr: 18140761 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 15-42 415 DATE: October 5, 2018 ORDER Entitlement to a disability rating of 70 percent for anxiety is granted. FINDING OF FACT The Veteran’s anxiety has resulted in occupational and social impairment, with deficiencies in most areas, including: family interactions, work, mood, and thinking. CONCLUSION OF LAW The criteria for a 70 percent evaluation for anxiety have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to June 1991. Entitlement to a 70 percent disability rating for Anxiety Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods, or “staged ratings” based on the facts found during the appeal period. See id. The Veteran’s entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In June 2013, the Veteran was granted entitlement to service connection for anxiety with a 50 percent rating, effective July 5, 2011. The Veteran appealed the initial rating assigned, and argued that he was seeking a 70 percent rating. Anxiety is rated under Diagnostic Code 9413 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2017). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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. 38 C.F.R. § 4.130 (2017). A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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 inability to establish and maintain effective relationships. Id. Symptoms listed in the General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). After a thorough review of the record, the Board has found that a uniform 70 percent rating is warranted for the Veteran’s anxiety throughout the appeal period. In March 2013, the Veteran was provided a VA examination regarding his anxiety. The examiner stated that the Veteran reported headache symptoms associated with anxiety attacks four to five times per week. The Veteran’s affect was noted to be moderately restricted and his mood was moderately anxious. The Veteran denied any suicidal or homicidal ideation. The examiner noted that the Veteran demonstrated symptoms that included: anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner opined that the Veteran’s anxiety caused occupational and social impairment with occasional decrease in efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfaction with normal routine behavior, self-care and conversation. In September 2013, the Veteran argued that he felt his symptoms were more severe than had been reported by the March 2013 examiner. He stated this condition more nearly approximated the criteria for a 70 percent rating based upon symptoms that include suicidal ideation, obsessional rituals, impaired impulse control, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran stated that when his service-connected headaches are at their worst he will think about how to relieve the pain, including ending his pain through suicide. He stated that he obsessively picks at his eyebrows, often drawing blood, and resulting in embarrassment. He indicated he also habitually picks at blemishes on his skin delaying healing. He reported that his impaired impulse control causes him to punch boxes or rip things. While he has avoided hurting others, he has blooded his knuckles on multiple occasions. He stated that due to his symptoms he has no friends other than his wife and his grown children, who know how to deal with him. In August 2015, the Veteran underwent another VA psychiatric examination. The Veteran reported that his symptoms had steadily increased since his prior VA examination and that the impact of these symptoms on his social and occupational activities had become more severe. He reported a depressed mood and that he had loss of interest and pleasure in usual activities. He reported fatigue and loss of sexual libido. Loss of focus and loss of concentration were reported about half of the time. He indicated excessive anxiety and worry that he finds difficult to control. Irritability with verbal explosiveness was noted. The examiner reported symptoms that included: panic attacks that occur more than once per week, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. In November 2015, the Veteran again argued that symptoms more nearly approximated the criteria for a 70 percent rating. The Veteran reported that he was having panic attacks nearly every day, and that he had been informed he had been taking three times the prescribed amount of clonazepam in an attempt to treat these symptoms. He stated that when he takes the prescribed amount of medication he feels “less calm, more irritable, poor judgment, and disorientated.” He stated that these symptoms had resulted in disciplinary action at work and that he believed he would soon lose his job. In November 2016, the Veteran reported that he had come to an agreement to resign from his position as a service case manager for a Veterans benefits program due to his service-connected disabilities. The Veteran reported that his constant headaches and his increased anxiety had caused him to take numerous hours and days off to accommodate his headaches and anxiety attacks. He stated that groups of people or tense situations would cause him to need leave areas, that he was unable to inspect confined spaces as was necessary, and that he needed to remove himself from all confrontations (real or perceived), which were commonplace in his role as a case manager. He stated that feelings of anger and irritability were always bubbling at the surface and the fear of losing control only added to his need to avoid difficult situations. Upon review of the evidence of record and after resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran demonstrated occupational and social impairment, with deficiencies in most areas during the period on appeal. The record demonstrates that Veteran has had problems with family interactions, work, mood, and thinking due to his anxiety. Throughout the appeal period, the Veteran has reported that his anxiety has caused significant problems in his marriage, has resulted in co-workers needing to take over his assignments at work, and has caused ritualistic behaviors that interfere with his ability to think and act reasonably. The Veteran’s wife has submitted a statement reporting how she cares about him too much to leave him alone, but that he is clearly not “capable of handling our (or any) finances.” She also stated that she has to use every resource she has to help him only to realize that he is “pacing, or picking his eyebrows, or that he’s lost focus.” The Veteran reported that his inability to inspect confined apartments and his need to remove himself from all confrontations, regularly interfered with his ability to work and strained his relationships with co-workers. He also indicated that obsessive habits such as pacing and picking his skin and eyebrows interfered with his mood and ability to think clearly. It was reported that his feelings of anger and irritability were always bubbling at the surface and that his fear of losing control only added to his need to avoid difficult situations. Accordingly, the Board finds that a 70 percent rating more nearly approximates the Veteran’s functional limitations due to his anxiety throughout the period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. With regard to whether a rating in excess of 70 percent is warranted, the Veteran himself has specifically stated that he sought a 70 percent rating for his anxiety in his September 2013 NOD and his November 2015 VA Form 9. The Veteran’s claim, in sum, is granted in full. He sought only a 70 percent initial rating and such a rating has been granted, throughout the appeal period. As the benefits sought in the claim being decided have been granted in full, discussion of VA’s duties under the Veterans Claims Assistance Act of 2000 is unnecessary. The Board notes, however, that a request for documents was received by VA from the Veteran in September 2018. VA regulations provide that individuals and their representatives may obtain, upon request, a copy of the information pertaining to them that is held or maintained by VA. See 38 C.F.R. §§ 1.577, 20.1200. When a Privacy Act request is filed “by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual’s appeal.” 38 C.F.R. § 20.1200 (2017). In this case, however, the Board finds that there is no prejudice to the Veteran in not fulfilling the request prior to appellate action because the claim at issue has been granted in full. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel