Citation Nr: 18160211 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 16-20 751 DATE: December 26, 2018 ORDER A rating of 70 percent, but no higher, for unspecified anxiety disorder with triggered panic attacks and features of posttraumatic stress disorder (unspecified anxiety disorder) is granted for the entire appeal period. FINDING OF FACT Throughout the appeal period, the Veteran’s unspecified anxiety disorder has been productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for unspecified anxiety disorder are met from December 24, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1976 to October 1980 and from January 2004 to September 2004, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. A rating of 70 percent for unspecified anxiety disorder is granted for the entire appeal period. Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Ratings are assigned according to the manifestation of particular symptoms. However, 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Veteran’s unspecified anxiety disorder is rated pursuant to DC 9413. 38 C.F.R. § 4.130; DC 9413. Under DC 9413, a 70 percent rating is warranted where the disorder is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such 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. A 100 percent rating is warranted when the evidence shows 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. Id. The Veteran is currently in receipt of a 50 percent rating for his service-connected unspecified anxiety disorder. The appeal period before the Board is from his December 24, 2013 claim, plus the one-year look back period. Initially, to the extent the Veteran has also been diagnosed with generalized anxiety disorder (see December 2014 VA treatment record) and panic disorder without agoraphobia (see November 2013 VA treatment record), the record does not adequately distinguish symptomatology of these disabilities from his unspecified anxiety disorder; thus, all psychiatric symptomatology will be considered in rating his disability. The Court of Appeals for Veterans Claims has recently held that “...the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Given the notation of suicidal ideation in the October 2018 VA examination report, along with evidence of the Veteran’s difficulty in adapting to stressful circumstances, to include a work or a worklike setting (cannot learn new material at work, continued anxiety in crowds and stressful situations), difficulty in establishing and maintaining effective work and social relationships, obsessional rituals (checking behavior), impaired impulse control (altercations with customers at work), panic attacks more than once per week affecting activities of daily living, anxiety, chronic sleep impairment (sleeps only a few hours a night), depressed mood, fair insight, and mildly impaired recent memory, to include forgetting names, directions or recent events, the Veteran’s unspecified anxiety disorder has resulted in occupational and social impairment with deficiencies in most areas (judgment, thinking and mood) supporting a 70 percent rating from December 24, 2013. See December 2014, January 2015, September 2015, November 2015, January 2016, January 2017, April 2017, and June 2017 VA treatment records; May 2016 VA Form 9; June 2014 and October 2018 VA examination reports. The Board finds that the preponderance of the evidence is against a finding a higher rating of 100 percent at any point during the appeal period. The evidence of record does not show total occupational and social impairment, and the Veteran does not assert otherwise. See November 2014 Notice of Disagreement (requesting a 70 percent rating). Gross impairment in thought processes or communication has not been shown. There is no evidence of memory loss for names of close relatives, own occupation, or own name, disorientation to time or place, delusions or hallucinations, or an intermittent inability to perform activities of daily living, or other symptoms of similar frequency, severity and duration. In addition, while the Veteran has reported suicidal ideation, a persistent danger of hurting self or others has also not been shown. Accordingly, a 100 percent rating is not warranted for the Veteran’s unspecified anxiety disorder. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel