Citation Nr: 18154017 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 15-03 299 DATE: November 29, 2018 ORDER Entitlement to a disability rating of 70 percent, but no higher, for an anxiety disorder is granted. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s service-connected anxiety disorder is manifested by deficiencies in most areas such as judgment, thinking, or mood, due to such symptoms as anxiety and depression. 2. The Veteran’s service-connected anxiety disorder is of such severity as to preclude him from securing and following substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for an anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty March 1958 to July 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision. In January 2018, the appeal was remanded by the Board for development and re-adjudication. Further, where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran raised the issue of entitlement to TDIU, due to his psychiatric disorder, in a January 2015 VA Form 9. Thus, the Board finds the issue of entitlement to TDIU is part and parcel of the increased rating claim; therefore, the issue is added to the acquired psychiatric issue on appeal. The issue of entitlement to service connection for tinnitus has been raised by the record in an October 2015 VA examination report wherein the examining VA audiologist stated that the Veteran’s tinnitus was secondary to his hearing loss (which is service-connected in the right ear), but that matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. §§ 19.9(b). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C. § 1155; Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolving any reasonable doubt regarding the degree of disability in favor of the claimant, evaluating functional impairment on the basis of lack of usefulness, and evaluating the effects of the disability upon the veteran's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). This analysis is undertaken with consideration of the possibility that different ratings may be warranted for different periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See 38 C.F.R. § 4.7. Where the issue on appeal is the initial disability evaluation assigned, VA must consider the evidence of record from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a disability rating in excess of 50 percent for an anxiety disorder. The Veteran contends that he is entitled to a higher disability rating for his service-connected psychiatric disability. In a June 2018 rating decision, the RO increased the Veteran’s rating from 30 percent to 50 percent for his psychiatric disability. Mental disabilities are evaluated under 38 C.F.R. § 4.130, and the Veteran is currently rated under Diagnostic Code 9413. Under this diagnostic code, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity. This may be due to such symptoms such as, for example: 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; difficulty in establishing effective work and social relationships. Id. A 50 percent rating is warranted for 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. Id. 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, and mood). This may be due to such symptoms such as, for example: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment. This may be due to such symptoms such as, for example: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The above-cited criteria 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, 442 (2002). “[A] Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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. See Mauerhan, 16 Vet. App. at 436. Further, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of an examination. See id. In a November 2012 VA mental disorders examination, the Veteran was diagnosed with anxiety disorder NOS with panic symptoms. The examiner noted that the Veteran suffered from symptoms that resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and inability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner described the Veteran as suffering from anxiety and panic attacks more than once a week. In an October 2014 statement, the Veteran reported that he cannot deal with crowds or stress, and that his wife attends most functions alone. He also noted that he medicates with alcohol. He also stated that his symptoms begin with anxiety and then panic attacks follow. In an October 2014, statement, authored by the Veteran’s wife, she confirmed that the Veteran’s anxiety onset during the time that he was in the military. She noted that the Veteran would pace the floor, drink heavily, self isolate, and that his moods severely changed. In an October 2015 VA mental disorders examination, the Veteran was diagnosed with other mixed anxiety and depressive disorder. The Veteran reported that he was recluse until about six months ago when he sought mental health treatment. The Veteran also described that after he was shot in the military, he had anxiety for fifty years. The examiner noted that the Veteran suffered from symptoms that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner described the Veteran as suffering from depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran did not suffer from grossly inappropriate behavior, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting self or others, intermittent inability to perform activities of daily living, or disorientation to time or place. In a January 2017 Confidential Neuropsychological Evaluation, the Veteran reported that he worries about everything, has nervous breakdowns, and has been unable to perform his duties in air traffic control in the mid-1960s. He also noted that he has panic attacks more than once a week and has anxiety attacks daily that includes symptoms of difficulty breathing, a racing heart, and increased shaking. The physician, Dr. J.D. noted additional symptoms to include chronic sleep impairment, difficulty adapting to stressful circumstances, including work-like settings, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and panic attacks. The physician opined that the Veteran’s service-connected acquired psychiatric disorder more closely approximated symptoms of the 70 percent criteria, beginning June 7, 2012. In another Confidential Neuropsychological Evaluation, dated in April 2017, Dr. J.D. noted that the Veteran qualified for the 70 percent disability rating. The physician noted that while testing, the Veteran’s demeanor was primarily calm, but that he had an anxiety attack as they were beginning the evaluation. The Veteran also reported that his depression and anxiety had taken control of him, but not his life. The physician determined that that the Veteran had significant chronicity and severity of his psychological disturbance which included symptoms of impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing effective work and social relationships, and moderate-severe generalized anxiety disorder, including panic attacks and agoraphobia. In an August 2017 VA mental disorders examination, the examiner diagnosed the Veteran with other specified anxiety disorder, panic disorder without agoraphobia, and persistent depressive disorder. The disorders were noted to be equal in severity and that the symptoms interacted with and exacerbated each other. Upon examination, the Veteran reported that his sleep is impaired onset with worrying; that he is “scared to death” of losing everything; that his worrying was best described as paranoia; and that he often feels tense, restless, agitated, uneasy, and on guard. He also stated that prior to a panic attack, during a trigger area, he feels shortness of breath and that he shakes uncontrollably and cannot talk. He can go as long as 4 to 5 days without a panic attack if he stays home alone and is not exposed to any triggers. He reported that he was married for over 50 years, had friends, and that all of his relationships were good. He further stated, however, that he prefers to be alone and that he had been dealing with his depressed mood since he was in air traffic control. He also stated that he could no longer tolerate driving in traffic to get to his therapy appointments due to anxiety. The examiner noted that the Veteran suffered from symptoms that resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner described the Veteran as suffering from depressed mood; anxiety; panic attacks more than once a week; near continuous panic or depression; difficulty in adapting to stressful circumstances, including work or a worklike setting; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran did not suffer from grossly inappropriate behavior, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting self or others, intermittent inability to perform activities of daily living, or disorientation to time or place. In a May 2018 VA addendum medical opinion, the examiner clarified that the August 2017 diagnoses of other specified anxiety disorder, panic disorder without agoraphobia, and persistent depressive disorder were updated diagnoses using DSM-5 wording and replaced the previous diagnoses of other mixed anxiety and depressive disorder (previously shown as anxiety disorder not otherwise specified). Here, a 70 percent rating is supported by the private medical opinions of record, as well as the findings in the August 2017 VA examination, which indicated that the Veteran’s acquired psychiatric disorder impaired his occupational and social functioning in most areas. Specifically, the Veteran had near continuous panic or depression affecting his ability to function independently; difficulty adapting to stressful circumstances (including work or a worklike setting); chronic sleep impairment; flattened affect; and disturbances of motivation and mood; A rating of 100 percent, the next level at which the Veteran could receive benefits, required a showing that the Veteran suffered from total occupational and social impairment. In this case, the symptoms described, however, did not rise to a level that would warrant a rating of 100 percent. The Veteran reported irritability, depression, and anxiety, among other symptoms, but these symptoms did not manifest to a degree of severity comparable to symptoms that would necessitate a rating of 100 percent. The Veteran did not display symptoms akin to gross impairment in thought processes or communication, persistent delusions or hallucinations, gross inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, occupation, or his own name. See Mauerhan, 16 Vet. App. at 436. As such, the Board finds that the evidence of record supports a disability rating of 70 percent during the period on appeal. 2. Entitlement to TDIU. A TDIU may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful employment as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more 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. See 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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. The Veteran is currently service connected for right ear hearing loss (0 percent), as well as an anxiety disorder (70 percent). Again, the Board has granted an increased rating for the psychiatric disability from 50 percent to 70 percent. Therefore, the schedular percentage criteria for TDIU are met. 38 C.F.R. § 4.16 (a). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. In an application for TDIU received in February 2015, the Veteran stated that he is unable to work due to his “panic attacks.” He also reported that he has a high school diploma and no other education and training. He further stated that he last worked full-time in December 1986, at which point he became too disabled to work to work as a welder and that he left his last job because of his disability. Here, the evidence supports the award of a TDIU. A June 2015 VA treatment note reveals that the Veteran exercised good judgement and was capable of maintaining standards of cleanliness. The clinician also noted that while the Veteran had mild anxiety, it would not cause him problems of being a productive employee or being reliable on the job. The psychologist further stated that given the Veteran’s panic attacks, jobs with minimal demands or stress would increase the likelihood of his success. Regarding the effects of symptoms of the Veteran’s mental disorder on employability, in the August 2017 VA examination, the examiner noted that the Veteran has not worked since his last examination and that he left his job as a welding engineer following a back injury in the 1980s. Further, the examiner noted that the Veteran’s severe anxiety and depression, physical limitations, and possible cognitive limitations all had effects on his current ability to seek and maintain employment. The examiner also stated that the Veteran’s ability to understand and follow instructions is considered mildly impaired; his ability to retain instructions and sustain concentration to perform simple tasks is considered markedly impaired, his ability to sustain concentration to task persistence and pace is considered moderately impaired; his ability to respond appropriately to co-workers, supervisors, or the general public is considered profoundly impaired; and his ability to respond appropriately to changes in the work setting is considered profoundly impaired. Additionally, in both the January 2017 and April 2017 private treatment records, Dr. J.D. opined that the Veteran’s psychiatric disability rendered him unable to be gainfully employed or caused marked interference with his ability to work, noting the Veteran’s symptoms of impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, panic attacks with agoraphobia. The Board acknowledges the June 2015 VA treatment note, but finds that the foregoing evidence in favor of granting a TDIU is at least in equipoise and, resolving reasonable doubt in favor of the Veteran, TDIU is granted. The Board specifically finds that the competent and credible medical and lay evidence of record strongly suggests that the Veteran’s acquired psychiatric disorder is of such severity, in light of his past work experience and education, as to preclude obtaining and retaining substantially gainful employment. Specifically, the Board takes note that the August 2017 VA examiner reported that the Veteran had profound impairment in his ability to respond appropriately to coworkers, supervisors, and the general public as well as the ability to respond appropriately to changes in the work setting. He also had moderate impairment in his ability to sustain concentration to task persistence and pace. As such, this opinion, in tandem with the private opinions of record, show that the Veteran is unemployable. Thus, based on this evidence, and resolving doubt in favor of the Veteran, the Board finds that the criteria for TDIU have been met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel