Citation Nr: 18156977 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-26 737 DATE: December 11, 2018 ORDER Entitlement to a 30 percent rating after June 22, 2007 but prior to October 29, 2008 for anxiety disorder with panic attacks is granted. FINDING OF FACT After June 22, 2007, but prior to October 29, 2008, the Veteran’s anxiety disorder with panic attacks more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood, anxiety, weekly panic attacks, chronic sleep impairment and mild memory loss. CONCLUSION OF LAW The criteria for a 30 percent rating after June 22, 2007, but prior to October 29, 2008 for anxiety disorder with panic attacks have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, DC 9412 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to September 1984 and January 2003 to January 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter came before the Board in June 2016, at which time the Board remanded the issue to obtain private treatment records. In April 2018, the Board remanded the case again to notify the Veteran that the records in question were unavailable and to provide the Veteran with an opportunity to locate the records or submit alternative evidence. The Veteran stated she does not have any additional evidence. The Board therefore finds that there has been satisfactory compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a 30 percent rating after June 22, 2007 but prior to October 29, 2008 for anxiety disorder with panic attacks Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating 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. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). The Veteran was initially awarded service connection for anxiety disorder with panic attacks by way of a December 2007 rating decision, which assigned a 10 percent rating. A 50 percent rating effective October 29, 2008, was assigned by way of an October 2010 rating decision. The Veteran asserts entitlement to a rating in excess of 10 percent after June 2007 but prior October 2008. Specifically, the Veteran asserts that during that time, her anxiety disorder more nearly approximated a 30 percent disability rating. The Board notes the Veteran’s representative expressed that a 50 percent rating after October 2008 was proper. See October 2011, Notice of Disagreement. The representative also stated that the evidence warrants a 30 percent rating beginning June 2007, not May 2006 when Veteran was assigned a 10 percent rating. For purposes of this appeal, the Board will construe the Veteran’s September 2008 statement concerning a desire to include post-traumatic stress disorder as a service connected disability, as encompassing the notion she was dissatisfied with the disability evaluation she had been assigned in the December 2007 rating action. In light of this, the applicable period at issue is between June 2007 and October 2008. The Veteran’s anxiety disorder with panic attacks is rated pursuant to 38 C.F.R. § 4.130, DC 9412. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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 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 and maintaining effective work and social relationships. A 70 percent rating is warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran’s symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.130. The Veteran sought treatment for her anxiety and panic disorders with a private provider. Although the full medical records are not available due to the death of the provider, the provider did write a letter, dated August 2008, stating she has seen the Veteran since September 2007. She diagnosed the Veteran with major depressive disorder and PTSD related to military service. The Veteran’s symptoms included hypervigilance, grief, rage, teariness, exaggerated startle response, conversion hysteria, feelings of helplessness, high anxiety level, survivor’s guilt, sleep disorder, appetite disorder, varying severities of depression, nightmares and omen formation. The provider stated that the Veteran’s PTSD was never acknowledged or effectively treated upon the Veteran’s return from deployment, resulting in requiring medication and consistent psychotherapy. The Veteran also sought treatment at the VA out-patient clinic in Winston-Salem. The records show on June 22, 2007 the Veteran felt more depressed and experienced in increase in panic attacks, which occurred three to four times a week. She felt more stressed at work but felt her concentration and functioning are adequate to do her job. The medical provider noted she had symptoms of diaphoresis, increased heart rate, shortness of breath and a need to escape with feelings of claustrophobia. The Veteran avoids crowds which affects her ability to attend church. She was taking medications of up to two to four times a day for her anxiety. She denied suicidal or homicidal ideation, hallucination or psychotic content. She was alert and oriented with insight and judgment intact. She was also diagnosed with sleep apnea at a sleep medicine clinic. On August 2007, during a follow-up, the Veteran reported having panic attacks of one or two episodes per week, which typically occur when she is in a crowd but it has occurred at work as well. She had a depressed mood two or three times a day. She also had problems with sleep and low energy. Her concentration is generally good but can sometimes veer off. The medical provider found her to have a “sad” affect dysthymic with moderate range and normal intensity. Here, the Board finds that, during applicable period, the Veteran’s anxiety disorder with panic attacks has worsened since the original assigment of 10 percent in May 2006. Since June 22, 2007, the Veteran’s anxiety disorder more closely approximates the 30 percent criteria owing to the demonstrated frequency and duration of panic attacks, depressed mood, and sleep impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Evidence shows she had panic attacks and was depressed several times a week. While she was still able to function at her job, her concentration veered off at times. In sum, the Board finds that, from June 2007 to October 2008, the Veteran’s anxiety disorder with panic attack symptomatology more nearly approximated the level of impairment contemplated by the 30 percent rating, but no higher. Indeed, the Veteran’s anxiety disorder with panic attack did not result in occupational and social impairment with reduced reliability, productivity, and overall functioning to warrant a 50 percent rating, and the evidence does not reflect that the Veteran’s mental condition resulted in deficiencies in most areas due to severe symptoms such as suicidal ideation, obsessional rituals, spatial disorientation, or inability to establish interpersonal relationships to warrant a 70 percent rating. It follows, then, that a 100 percent rating is not warranted, as the Veteran has not manifested a gross impairment of thought processes or communication with persistent delusions or hallucinations, grossly inappropriate behavior, disorientation to time or place, or other symptoms indicative of a total impairment in social and occupational functioning at any point prior to October 2008. The Board finds the Veteran’s anxiety disorder with panic attack symptomatology has most nearly approximated in occupational and social impairment with occasional decrease in work efficiency during the period of June 2007 and October 2008. Based on the foregoing, the Board has determined a 30 percent rating is warranted for the Veteran’s service-connected anxiety disorder for the applicable period. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel