Citation Nr: 18155284 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 12-19 534 DATE: December 4, 2018 ORDER Entitlement to a disability rating greater than 70 percent prior to April 9, 2018, for a generalized anxiety disorder is denied. FINDING OF FACT Prior to April 9, 2018, the Veteran’s generalized anxiety disorder has resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an evaluation greater than 70 percent for generalized anxiety disorder prior to April 9, 2018, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1964 to September 1968. The claim was most recently before the Board in February 2016 when it was remanded for further development. In a May 2018 rating decision, the rating for PTSD was increased to 70 percent, effective April 9, 2018, and the Veteran was awarded a total disability rating due to service-connected disabilities (TDIU), effective November 1, 2012. As such, the issue before the Board is as noted on the title page. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased rating for a generalized anxiety disorder, currently evaluated as 70 percent disabling The Veteran contends that his generalized anxiety disorder warrants a rating greater than 70 percent prior to April 9, 2018. When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will 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 examination. It is the responsibility of the rating specialist to interpret reports of examinations in the 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 present. 38 C.F.R. § 4.2. The Veteran’s diagnosed disability of generalized anxiety disorder is rated under Diagnostic Code (DC) 9400. Under the provisions of DC 9400, a rating of 100 percent is assignable for 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. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 70 percent rating is assignable for 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 work like setting); inability to establish and maintain effective relationships. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118 The Veteran was granted service connection with a 30 percent disability rating for anxiety in a June 1973 rating decision. In a March 2006 rating decision, the RO increased the rating of the Veteran’s service-connected generalized anxiety disorder to 70 percent, effective November 23, 2005. The Veteran was notified in April 2009 that he would have to report for a periodic evaluation to assess the current severity of his generalized anxiety disorder disability. The Veteran was given a periodic VA examination in April 2009. The Veteran reported to the examiner that he felt depressed once or twice a week, and that he takes valium for his anxiety but it causes “fogginess in [his] mind at times.” The Veteran admitted to having suicidal thoughts but stated he wouldn’t carry them out due to his religious convictions. The examiner found the Veteran’s appearance to be clean and neatly groomed. His speech was slow, clear and coherent and he had a flattened affect. The examiner found the Veteran’s memory to be normal. He was anxious, but did not experience panic attacks, ritualistic behavior, episodes of violence, suicidal or homicidal ideations. His impulse control was good. However, the examiner remarked that the “Veteran’s service connected disability remains at the current level of severity. It has not decreased due to economic pressure and has not increased as he is on medication and is complying it.” In May 2009, the RO issued a rating decision, continuing the Veteran’s 70 percent disability rating for his generalized anxiety disorder. The Veteran filed a timely notice of disagreement (NOD) in February 2010. The Veteran was given a VA examination in June 2012. The examiner specified the Veteran’s symptoms as depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, disturbances in motivation and mood, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. The examiner remarked that the Veteran’s anxiety continues to be an issue that is controlled by valium, but the valium causes fatigue, drowsiness and cognitive impairment. In a June 2012 rating decision, the RO proposed a reduction in the Veteran’s psychiatric rating. Private medical treatment records from August 2012 show that after receiving the RO’s June 2012 rating decision, the Veteran sought medical treatment from his medical provider. The Veteran was complaining of increased anxiety that his VA benefits were about to be reduced and that he would not be able to meet his financial obligations. The Veteran reported to his provider that he believes his wife is better off with him dead. The Veteran also voiced several times that he had been robbed of his marriage as they have just co-existed secondary to the Valium making him not care about sex or advancing his career because the drug made him not care and now after 45 years the government is turning its back on him. The medical provider further wrote that the Veteran has been a patient of his since 2004 and that he disagrees with the proposed action. In September 2012, the Veteran’s VA treating psychiatrist submitted a letter on behalf of the Veteran stating that while the Veteran was in her office he started to hyperventilate while discussing his anxiety from work-related stress and relationship problems with his spouse. In September 2015, the Veteran testified at a Board hearing that he has become more anxious since his June 2012 examination because of his inability to work gainfully and also because his relationship problems weren’t noted by the examiner. The Veteran’s spouse also testified that the Veteran had to resign from his job because of the added stress of the proposed VA action put upon the Veteran. He became more irritable with his co-workers and supervisors and the trembling in his hands increased to the point where he couldn’t perform his job duties adequately. This also created a financial hardship, because the Veteran had not plan to retire for two more years as part of his delayed retirement option plan (DROP). Pursuant to the Board’s February 2016 remand, the Veteran was given a VA examination in April 2018. The examiner characterized the Veteran’s condition as total occupational and social impairment. The examiner found the Veteran had the specific symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, mild memory loss, flattened effect, impaired judgment, disturbances in 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, impaired impulse control, such as unprovoked irritability with periods of violence and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner further remarked: given poor adaptability to his symptoms with need for frequent increases and additions of psychiatric medications, his ability to engage in and sustain adequate social interaction has progressively deteriorated and often results in [Veteran’s] responding in an irritable manner, he has a poor ability to sustain [activities of daily living] ADLs as noted by wife who reported she often needs to remind him to do ADLs and even with that he can go extended periods of time without doing so; frequent periods of poor judgment leading to problems with impulse control and progressive cognitive impairment is noted that has decreased his ability to sustain an adequate persistence and pace. After a review of the evidence, the Board finds that a rating in excess of 70 percent prior to April 9, 2018, is not warranted. Prior to the April 2018 VA examination, there is no evidence suggesting that the Veteran’s symptoms met the criteria for total occupational and social impairment. The Veteran did not manifest symptoms of 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. Although, the VA examination reports and records do discuss that the Veteran had suicidal thoughts, the Veteran clearly stated he would not act upon thoughts due to his religious beliefs. During the April 9, 2018 VA examination, the examiner was able to identify that the Veteran would ignore his personal hygiene if his wife did not remind him to bathe. This element elevated the Veteran’s disability rating to total occupational and social impairment beginning April 9, 2018. Prior to that date the evidence did not show the Veteran was unable to function mentally and behaviorally on a daily basis, causing total occupational and social impairment. The psychiatric symptoms were not productive of a danger of physical harm to the Veteran or others and there was no gross impairment of his cognitive functions and behavior. In summary, the preponderance of the evidence is against the claim a rating greater than 70 for generalized anxiety disorder, prior to April 9, 2018. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael