Citation Nr: 18153524 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 14-41 270A DATE: November 28, 2018 ORDER Entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disorder to include anxiety disorder not otherwise specified (NOS) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The psychiatric symptoms shown in this case have been more clinically characteristic of those contemplated by the criteria for a 50 percent evaluation than those contemplated by the criteria for a 70 percent evaluation. CONCLUSION OF LAW The criteria for an evaluation in excess of 50 percent for an acquired psychiatric disorder to include anxiety disorder (NOS) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to July 1982; June 1989 to May 1990; and September 1990 to September 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As indicated in the REMAND section of this decision, the issue of entitlement to a total disability evaluation based upon individual unemployability has been raised in this case. This case raises no further issues, other than those adjudicated below. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to an increased rating in excess of 50 percent for anxiety disorder not otherwise specified (also claimed as PTSD). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Any doubt regarding the extent of the disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. As the Veteran’s representative has pointed out, 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 disability present. Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran contends that his service connected anxiety disorder (NOS) is more severe than contemplated by the currently assigned 50 percent disability rating. After a review of the evidence, the Board finds that a rating in excess of the currently assigned 50 percent rating is not warranted. Under the General Rating Formula for mental disorders, a 50 percent rating is assigned when the evidence shows 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, DC 9413. A 70 percent disability rating applies when occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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. Id. Evaluations under 38 C.F.R. § 4.130 are “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9414 are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9414. When evaluating the level of disability arising from a mental disorder, 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). However, the rating agency 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. In a VA PTSD examination report dated April 2012, the examiner opined that the Veteran “does not today describe a distinct or full set of PTSD symptoms.” The examiner noted that a review of the Veteran’s file reveals previous outpatient VA mental health treatment over several years that has resulted in various diagnosis. The examiner also noted that the Veteran’s level of anxiety approached panic attacks and some level of occupational (nomadic lifestyle) and social impairment (multiple divorces) while also noting that the Veteran was currently employed. After reviewing the PTSD diagnosis criteria, the examiner concluded that the Veteran’s acquired psychiatric disability manifests itself through anxiety disorder (NOS) with some depressive qualities. The RO assigned a 30 percent rating. The Veteran filed a NOD in August 2013. The RO subsequently reviewed the evidence in the record and determined that the Veteran’s disability picture more nearly approximates the criteria required for a 50 percent disability rating for the entire period on appeal. The Veteran reported for another VA mental health examination in April 2016. At that time, the examiner did not provide a diagnosis and reported instead that there was strong objective evidence that the Veteran is over-reporting, exaggerating, and/or feigning symptoms. The examiner stressed that significant evidence of over-endorsement, exaggeration or feigning symptoms makes it impossible to differentiate the symptoms a person is truly experiencing from those they are feigning or exaggerating. The examiner opined that results of this examination “do not mean the Veteran does not have a mental disorder diagnosis”; rather they make it “impossible to determine an accurate diagnosis and what, if any, functional impairment (social or occupational) there is from those symptoms.” The Board has reviewed all of the above evidence and does not question that the Veteran’s service-connected psychiatric disorder results in some level of occupational and social impairment, as represented by the assigned 50 percent evaluation. The inquiry for the Board, however, is whether the criteria for the higher 70 percent evaluation are met. The Board finds that such criteria are not met in this case. The Board finds that the April 2012 mental health examination most approximates the Veteran’s disability picture. In reaching the conclusion that a higher rating is not warranted, the Board has considered the Veteran’s December 2014 VA Form 9 where he asserts his anxiety “affects every relationship I have and as a result I’m not close to anyone and never really have been” and the Veteran’s reported suicide attempts in 2004 and 2013. First, the Board finds no basis for concluding that the Veteran’s anxiety disorder results in occupational and social impairment, with deficiencies in most areas. The Board notes that in the March 2012 examination report the VA examiner noted that the Veteran “was affable, outgoing with a range of affect including a good deal of humor. He had a certain outgoing quality about him” and “[h]e was well oriented to time, place and person, and the purpose of the examination.” In addition, even though no diagnosis was provided in the April 2016 examination, the report noted that the Veteran was appropriately dressed, with good hygiene and grooming, making good eye contact. Even though his mood was angry and oppositional, the examiner noted that his affect and speech were normal, and his thoughts were logical, coherent, and goal-directed. This is not at all consistent with a 70 percent evaluation. Second, while the record reflects two instances of attempted suicide, the Veteran’s entire record (e.g., VA treatment reports from January 2015, February 2015, and March 2016) otherwise reflects consistent denial of suicidal or homicidal ideation. Also, while the Veteran’s anger and irritability were noted in a record of VA treatment from May 2015, he has been able to manage this anger without periods of violence. In VA treatment records from December 2010 the Veteran reported fighting when consuming alcohol and also reported abstaining to avoid aggressive behavior. As such, the evidence does not reflect that the Veteran’s symptoms in total are of sufficient frequency and severity to cause the level of occupational and social impairment contemplated by the 70 percent rating level. See Vazquez-Claudio v. Shinseki, supra. Moreover, the Veteran’s VA treatment records show that while he has struggled with employment at times, he has had success in finding employment, demonstrated by the fact that he was able to find employment throughout the United States and in England as a mechanic. Additionally, the Veteran has been able to maintain adequate hygiene, normal and logical thought processes, and there are no noted obsessive rituals or other symptoms that interfere with routine activities of daily living. Apart from the reported instance of attempted suicide, during the appeal period, the record does not support symptomatology consistent with a 70 percent rating. In light of the Veteran’s symptomology, the Veteran’s anxiety (NOS) more closely approximated by the 50 percent rating level, than the 70 percent rating level. In summary, the criteria for an evaluation in excess of 50 percent for a psychiatric disorder are not met. The Veteran’s appeal is denied. REMAND Assertions made during the Veteran’s November 2018 Informal hearing presentation and throughout scattered progress notes raise a claim for a total disability rating based on individual unemployability (TDIU). A claim for TDIU is part of an increased rating claim when such is raised by the Veteran or by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Appropriate notification and development actions must be completed before the Board’s adjudication of this claim. The matter of entitlement to TDIU is REMANDED for the following reason: 1. Contact the Veteran via a 38 C.F.R. § 3.159(b) letter, addressing the elements of the raised TDIU claim in furtherance of obtaining all updates VA and/or private treatment records pertinent to the claims on appeal. Any records obtained as a consequence of the Veteran’s response to this letter must be added to the claims file. 2. Determine if additional development is required prior to readjudication. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel