Citation Nr: 18159394 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-57 010 DATE: December 19, 2018 ORDER An initial 50 percent evaluation, but no higher, for generalized anxiety disorder (GAD) for the period prior to December 29, 2016, is granted. FINDING OF FACT 1. During the period from August 31, 2014 through December 28, 2016, the Veteran’s psychiatric disability is shown to result in occupational and social impairment with reduced reliability and productivity, due to his anxiety, panic attacks, chronic sleep impairment, impairment in short- and long-term memory, and difficulty in establishing and maintaining effective work and social relationships. 2. Throughout the appeal period, the Veteran’s psychiatric disability only shown to demonstrate difficulty in adapting to stressful circumstances, such as in work or worklike settings, which does not result in either total occupational and social impairment, or occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial 50 percent evaluation, but no higher, for GAD for the period prior to December 29, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to October 2003. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for a psychiatric disorder and assigned a 30 percent evaluation for that disability, effective August 31, 2014. The Veteran timely appealed the assigned initial evaluation for his psychiatric disability; he indicated in his August 2016 Notice of Disagreement, VA Form 21-0958, that he would be satisfied with a 50 percent evaluation for his psychiatric disability. During the pendency of this appeal, in a January 2017 rating decision, the Agency of Original Jurisdiction (AOJ) assigned a 50 percent evaluation for the Veteran’s psychiatric disability, effective December 29, 2016. In a February 2017 statement, the Veteran indicated that he “agreed with the percentage increase” for his psychiatric disability, but he believed that it “should have been back dated” he felt the same as when he initially filed his claim for service connection. Accordingly, the Board finds that the award of a 50 percent evaluation for the Veteran’s psychiatric disability is a full and complete grant of benefits sought on appeal with respect to the period beginning December 29, 2016. As such, the Board will no longer address the period after that date in this decision. See AB v. Brown, 6 Vet. App. 35 (1993). Consequently, the sole issue remaining on appeal before the Board at this time is whether an evaluation in excess of 30 percent for the Veteran’s psychiatric disability is warranted for the period of August 31, 2014 through December 28, 2016. The Board finds that a 50 percent evaluation, but no higher, is warranted for that period on appeal. The reasoning is as follows. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran has been assigned a 30 percent evaluation under Diagnostic Code 9400 throughout the period on appeal in this case. Under Diagnostic Code 9400, which is governed by a General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted for 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), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. A 50 percent evaluation 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; difficulty in establishing and maintaining effective work and social relationships.. See Id. A 70 percent rating is warranted 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 a work-like setting); inability to establish and maintain effective relationships. See Id. A 100 percent rating is warranted 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; 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. See Id. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116 Turning to the evidence of record, the Veteran underwent a VA psychiatric examination in November 2015, at which time he was noted to have the following psychiatric symptomatology: anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting; the examiner concluded that his psychiatric symptomatology 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. During the examination, the Veteran indicated that he talked to his mother regularly and was close with his siblings, although he did not speak to his father. He was married for 5 years at that time, and his marriage was “good.” He further reported that his anxiety caused him to be irritable at times. He was noted to have been working as a utility worker since 2007, but, although he did not have any infractions at work, he did report he was often anxious at work. He denied any suicide attempts or hospitalizations due to his psychiatric disability. The examiner concluded that the Veteran did not pose a threat to himself or others. In his August 2016 Notice of Disagreement, the Veteran stated that he felt he should be rated as 50 percent disabling. He stated that he was affected in his ability to function socially and at work because of being overly anxious, which effected his ability to perform simple tasks due to forgetting to do them. He additionally indicated that he had frequent panic attacks, which made it hard for him to be social and communicate with his co-workers and employees. A statement submitted with that Notice of Disagreement details the effects of his GAD which is substantially similar to that noted above. Additionally, in his October 2016 substantive appeal, the Veteran indicated that his panic attacks, anxiety, sleeplessness, and social isolation caused him to be more socially and occupationally impaired that evaluated. On December 29, 2016, the Veteran underwent another VA psychiatric examination, at which time he was noted to have the following psychiatric symptomatology: anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impairment in short- and long-term memory, for example, retention of only highly-learned material, while forgetting to complete tasks, and difficulty in establishing and maintaining effective work and social relationships; the examiner found that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. Generally, the balance of that examination report is substantially similar to that reported in his November 2015 VA examination. Based on the foregoing, the Board finds that throughout the appeal period, the Veteran’s psychiatric disability is shown to result in occupational and social impairment with reduced reliability and productivity, due to his anxiety, panic attacks, chronic sleep impairment, impairment in short- and long-term memory, and difficulty in establishing and maintaining effective work and social relationships. Consequently, such is commensurate to a 50 percent evaluation for the period prior to December 29, 2016, and to that extent, his appeal is granted; the Board notes that such is a full award of the benefits sought on appeal in this case, as noted in his Notice of Disagreement and other statements of record. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400; see also AB, supra. Moreover, given the fact that the Veteran is working throughout the appeal, the Board cannot find that the Veteran is totally occupationally impaired in this case; thus, a 100 percent evaluation is not warranted during the period on appeal at this time. Likewise, although the Veteran is shown to have a difficulty in adapting to stressful circumstances, including work or a worklike setting, during the appeal period, neither the Veteran nor either of the VA examiners have assessed that such leads to social and occupational impairment with deficiencies in most areas of his life. Consequently, the Board finds that an evaluation in excess of 50 percent is not warranted at any time during the period on appeal in this case. See Id. Finally, the Board reflects that the Veteran has been working throughout the appeal period at issue in this case, and therefore, the issue of a total disability rating based on individual unemployability (TDIU) is not raised by the record in this case. See 38 C.F.R. § 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel