Citation Nr: 18149257 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-26 723 DATE: November 9, 2018 ORDER A rating of 70 percent, but no higher, for panic disorder with agoraphobia and anxiety (panic disorder) is granted, subject to controlling regulations applicable to the payment of monetary benefits. A total disability rating based on individual unemployability is granted (TDIU). FINDINGS OF FACT 1. The Veteran’s panic disorder results in occupational and social impairment, with deficiencies in most areas. 2. The Veteran is unable to secure or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 70 percent, but no higher, for service-connected panic disorder is met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.126, 4.130, Diagnostic Code (DC) 9412. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from April 2001 through December 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in part, continued a 50 percent disability rating for panic disorder with agoraphobia (anxiety). 1. Entitlement to a disability rating greater than 50 percent for panic disorder. The Veteran asserts entitlement to an increase rating in excess of 50 percent for his service-connected panic disorder. Specifically, the Veteran asserts that his anxiety has increased noticeably since his original diagnosis and warrants at least a 70 percent disability rating. See October 2013 claim for increase rating and August 2014 notice of disagreement. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. The Veteran’s service-connected panic disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9412. That DC uses the General Rating Formula for Mental Disorders, which provides for a 50 percent rating 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 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 inability to establish and maintain effective relationships. A 100 percent rating is warranted for a mental disorder when there is 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; and memory loss for names of close relatives, own occupation or own name. The specified factors for each rating for mental disorders are examples, rather than requirements, for that particular rating. The Board will not limit its analysis solely to whether a veteran exhibited the symptoms listed in the rating criteria. The Board will instead focus on the level of occupation and social impairment caused by the symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Mauerhan, 16 Vet. App. at 442. The list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Mauerhan, 16 Vet. App. at 442. Each particular rating “requires sufficient symptoms of the kind listed in the [] requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The regulations were recently revised to incorporate the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) rather than the Fourth Edition (DSM-IV). However, these provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran’s claim was certified to the Board in August 2016; therefore, the regulations pertaining to the DSM-5 are for application. Additionally, GAF scores were not used to assess the severity of the Veteran’s panic disorder throughout the appeal period. Golden v. Shulkin, 29 Vet. App. 221 (2018). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual History By way of background, in April 2013 the Veteran underwent a VA examination. See April 2013 VA examination and report. The Veteran reported almost daily panic attacks and described them as consisting of accelerated heart rate, sweating, trembling, shaking, feeling short of breath, feelings of loss of control, and fear of death without obvious external precipitants. See April 2013 VA examination and report. The examiner assessed the Veteran with occupational and social impairment with reduced reliability and productivity. In October 2013, the Veteran submitted a claim for an increased evaluation of his panic disorder, which was denied April 2014. See October 2013 claim and April 2014 rating decision. During the pendency of the Veteran’s claim for an increased rating, he filed a claim for TDIU, which was denied in a February 2015 rating decision. See September 2014 claim for TDIU and February 2015 rating decision. Since October 2013, the Veteran’s psychiatric care has been managed by VA psychiatrist RDH, MD. See October 2013 VA treatment record. The Veteran told Dr. RDH that medications had failed to treat his panic disorder and he was self-medicating by drinking 20 alcoholic beverages per day. See October 2013 VA treatment record. The Veteran reported that his panic attacks lasted “the rest of the day” and that although medication “dampened” the severity of his panic attacks, he still felt anxious. On December 2013, the Veteran told his substance abuse counselor, Ms. PKP, LCSW, that he had a panic attack at work and although medication was helping, he still needed to consume alcohol to calm down. See December 2013 VA treatment record. Both Dr. RDH and Ms. PKP specifically documented that the Veteran appeared anxious. The Veteran continued to endorse having break through panic attacks leading up to the December 2013 holidays. See December 2013 VA treatment record. The Veteran described his panic disorder as manifested by shakiness, rapid heartbeat, and dizziness. See March 2014 VA treatment record. Concerning self-medicating, the Veteran reported he craved alcohol during the day, while at work, because it lowered his anxiety. The Veteran also reported increased anger and frustration while at work. In a VA bio-psychosocial assessment the Veteran reported that his marriage was “basically good” and his relationship with his children was “good I guess.” See March 2014 VA treatment record. The Veteran underwent a VA examination April 2014. Socially, the Veteran reported marital strain, irritability with spouse and children, not having any friends, and not leaving the house unless required. See April 2014 VA examination and report. Occupationally, the Veteran reported being anxious at work and having at least one panic attack daily, with difficulty concentrating afterwards. The Veteran reported working better without customer contact and occasional verbal confrontations with customers: recently yelling at a customer and getting in trouble at work. The Veteran reported taking medications as prescribed without efficacy. The examiner documented current symptoms of anxiety, panic attacks more than once a week, mild memory loss, such as forgetting names, directions or recent events, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner assessed the Veteran with occupational and social impairment with reduced reliability and productivity. Consistent with the Veteran’s reported symptoms during the April 2014 VA examination, in May 2014 the Veteran told Dr. RDH that he was having 3 to 4 panic attacks a day despite an adjustment to his medications. See May 2014 VA treatment record and April 2014 VA examination and report. The Veteran described his panic attacks as manifested by anxiety, chest tightness, and heart palpitations. See May 2014 VA treatment record. Consistent with the Veteran’s substantive appeal, he reported poor sleep and self-medicating, despite being prescribed Naltrexone, with 8 to 10 alcoholic beverages per day. See May 2014 VA treatment record and June 2016 substantive appeal. The Veteran also told Dr. RDH that he was going to leave his current job in the hope that removing a stressor would allow him to stop self-medicating. Unfortunately, Dr. RDH’s mental status evaluation appears to be a copy of his prior evaluations; but nevertheless, Dr. RDH adjusted the Veteran’s medication by removing Naltrexone and adding medication for insomnia. Consistent with the Veteran’s date of filing for TDIU, he was “voluntarily terminated” from employment August 2014, and applied for Social Security Disability, and Disability Insurance Benefits (SSDI) August 2014. See August 2014 application for SSDI, September 2014 claim for TDIU, and January 2015 response to request for employment information. In July 2014, the Veteran continued to report anxiety attacks and fragmented sleep, at which point Dr. RDH noted the Veteran to have an abnormal attention span and abnormal concentration, as well as an anxious mood. The Veteran told Ms. PKP that he had enrolled in online university classes and planned to leave employment in the hopes that it would diminish his anxiety. See July 2014 VA treatment record. Records furnished by the Social Security Administration (SSA), show that in August 2014 the Veteran reported fearing death, a complete inability to leave the house, drive, or shop for food alone, not sleeping, and waking up gasping for air with his heart pounding. See August 2014 SSA function report. Dr. RDH also provided SSA with a check list, rating the severity of the Veteran’s panic disorder. See December 2014 medical source statement – mental. Dr. RDH checked boxes indicating that the Veteran’s panic disorder would cause him to be off task more than 25 percent of the work day and that the Veteran would miss more than 4 days of work due to his panic disorder. Dr. RDH checked boxes indicating that the Veteran’s panic disorder either markedly limited, defined as having serious interference with the ability to function independently; or extremely limited, defined as no useful functional ability, in the areas of understanding and memory, concentrating, interacting socially, and adapting to changes in a work setting. See December 2014 medical source statement – mental. In November 2014 the Veteran told Dr. RDH that he had daily anxiety and panic attacks, which lasted the entire day. See November 2014 VA treatment record. The Veteran’s general anxiety was ubiquitous and he was sleeping 6 hours per night. The Veteran requested a benzodiazepine but Dr. RDH cited the Veteran’s self-medicating with alcohol as reason to decline that course of treatment. In January 2015 the Veteran had a panic attack while in the VA facility’s waiting area. See January 2015 VA treatment record. The Veteran’s respiration rate was 19 and his pulse was 101 beats per minute. In March 2015 the Veteran had gone outside the VA in order to receive benzodiazepines, but could not afford the treatment; he reported passive and fleeting suicidal thoughts, he had stopped taking online classes, he felt worthless at times. See March 2015 VA treatment record. In October 2015, the Veteran reported feelings of depression. See October 2015 VA treatment record. The Veteran told Dr. RDH that his anxiety had increased. By December 2015, the Veteran was reporting poor sleep, anxiety, and a depressed mood without suicidal ideations, daily panic symptoms, which were worse away from the house, isolation, increased anxiety even when inside the home, and a fear that something would happen to him. See December 2015 VA treatment record. The Veteran underwent a VA examination January 2016. See January 2016 VA examination and report. Socially, the Veteran reported having no close friends, rarely engaging in social activities, an inability to engage in hobbies alone, such as hunting, needing to be driven to appointments by a family member, and an inability to drive long distances. Occupationally, the Veteran reported leaving work August 2014 after being demoted for taking too many breaks and being unable to handle panic attacks, stress, and anxiety while at work. The Veteran also reported an inability to be around a lot of people without feeling like he would have a heart attack and beginning to shake. While the Veteran did relay that he was taking online classes, he admitted that his panic disorder would preclude him from using his education meaningfully. The Veteran told the examiner that Dr. RDH had retired. Behaviorally, the Veteran reported his mood was an irritable, emotional roller coaster. The Veteran recounted problems with names, dates, and actors he has watched for years, trouble with attention and concentration, and blocking people out without realizing he was doing so. The examiner documented current symptoms of depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names directions or recent events, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. See January 2016 VA examination and report. The examiner assessed the Veteran with occupational and social impairment causing deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, and that the Veteran experienced significant functional impairments. When the Veteran returned to VA for medical treatment, it was noted that he had increased anxiety in response to Dr. RDH no longer being his psychiatrist. See March 2016 VA treatment record. The Veteran reported having panic attacks if he left his home. The Veteran also reported having chronic sleep problems and was considered a low suicide risk. See March 2016 VA treatment record. The Veteran also stated that he was no longer motivated to continue with online education courses. The Veteran was assessed with agoraphobic avoidance and panic attacks, as well as considered to have poor to limited insight. Although the Veteran followed up with his new psychiatrist in June 2016, his mental status evaluation at that time showed his insight and judgment had deteriorated to limited but grossly intact. See June 2016 VA treatment record. Analysis The record demonstrates that a 70 percent evaluation is warranted. In making this finding, the Board notes that the January 2016 VA examiner’s assessment is somewhat inconsistent with the assessments of the April 2013 and 2014 VA examiners. Nevertheless, the main difference between these reports is not the Veteran’s stated symptoms, but the assessment of occupational and social impairments they caused. That is, in April 2013 and 2014 the VA examiners assessed the Veteran’s symptoms as causing occupational and social impairment with reduced reliability and productivity, but the January 2016 VA examiner assessed the Veteran’s symptoms as causing occupational and social impairment with deficiencies in most areas. However, in each report the Veteran endorsed daily panic attacks, social isolation, marital issues, unprovoked irritability, and mild memory loss. This is consistent with the Veteran’s statements to Dr. RDH and Ms. PKP during the entire appeal. See October 2013 VA treatment record (panic attacks lasting the entire day); December 2013 VA treatment record (panic attack at work); March 2014 VA treatment record (panic attack manifested by shakiness, rapid heartbeat, and dizziness); May 2014 VA treatment record (3 to 4 panic attacks a day); July 2014 VA treatment record (abnormal attention span and concentration); November 2014 VA treatment record (daily anxiety and panic attacks, lasting entire day); January 2015 VA treatment record (panic attack in waiting area); October 2015 VA treatment record (increased anxiety); and December 2015 VA treatment record (daily panic symptoms, worse away from home). Thus, the Board finds the January 2016 VA examiner’s assessment of the Veteran’s occupational and social impairments with deficiencies in most areas to be more consistent with the Veteran’s symptoms. Accordingly, a 70 percent rating of disability is warranted for the entire appeal period. A 100 percent rating, however, is not warranted. The evidence of record does not demonstrate total social and occupational impairment – the Veteran has a relationship with his parents, wife, and children. The Veteran could adequately care for himself and hygiene was not noted to be an issue at any point during the appeal. Indeed, he endorsed going out to dinner March 2016. See March 2016 VA treatment record. Furthermore, he did not exhibit inappropriate behavior, persistent delusions or hallucinations, a danger to self or others, or disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. Finally, the Veteran’s thought processes and communication were not noted to be grossly impaired. He specifically denied such symptoms during numerous mental status evaluations. See March through July 2015 VA treatment records. The Veteran’s other symptoms were not of similar severity, frequency, and duration to cause total social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). As such, the Veteran’s panic disorder does not warrant a 100 percent rating. In short, the Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence does not support the award of a higher rating for the Veteran’s panic disorder. 2. Entitlement to a TDIU. A TDIU is warranted when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Specifically, a TDIU is warranted when the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection is in effect for the following disabilities: panic disorder at 70 percent; tinnitus at 10 percent; internal derangement, right knee at 10 percent; gastroesophageal reflux at 0 percent; and right ankle sprain at 0 percent. For the time period on appeal, the Veteran’s combined disability evaluation is 80 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as 70 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). Resolving all doubt in favor of the Veteran, the record also reflects that the Veteran is unable to work due to his panic disorder. The Veteran last worked as an assistant store manager in August 2014 when he was voluntarily terminated, which he alleges, occurred after being demoted for taking too many breaks and being unable to handle panic attacks, stress, and anxiety while at work. See January 2015 response to request for employment information and January 2016 VA examination and report. The Veteran has not worked since that time. Although the Veteran attended online university, he felt his panic disorder would preclude him from using it for anything, and reported he was no longer motivated to continue. See January 2016 VA examination and report. [continued on next page] Dr. RDH checked the boxes of a medical source statement to SSA indicating that the Veteran’s panic disorder would cause him to be off task more than 25 percent of the work day and miss more than 4 days of work per month. The January 2016 VA examiner opined that the Veteran’s panic disorder caused occupational impairment with deficiencies in most areas, such as work, judgment, thinking and/or mood; and that as a result of his panic disorder, he experienced significant functional impairments, including difficulty adapting to a work environment. In conclusion, the evidence shows that the Veteran has not worked since 2014 as a result of the service-connected panic disorder and a TDIU is granted. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel