Citation Nr: 19190846 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 18-06 348 DATE: December 3, 2019 ORDER Entitlement to a rating greater than 50 percent for a generalized anxiety disorder is denied. REMANDED Entitlement to service connection for a stroke is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT At no time during the period on appeal did the Veteran’s generalized anxiety disorder manifest symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW The criteria for a rating greater than 50 percent for a generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.20, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to February 1998. Entitlement to a rating greater than 50 percent for service-connected generalized anxiety disorder 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). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran’s service-connected generalized anxiety disorder is currently evaluated at 50 percent. The issue in this appeal is whether the associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9400, a 50 percent rating is warranted when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA and private treatment records, the October 2015, December 2015 and March 2018 VA examinations, and the Veteran’s lay statements show that the generalized anxiety disorder was manifested by symptoms associated with a 50 percent rating of depressed mood, disturbances of motivation and mood, anxiety, panic attacks several times per week and mild memory loss, such as forgetting names, directions or recent events. She also experiences symptoms associated with a 70 percent rating, such as, deficiencies in family relations. In this regard, the Veteran reported to the examiner that she does not see her two adult sons or two grandchildren or other family members in person but does “talk to them on the phone every six months or so.” She also had symptoms that are not listed with a specific rating, such as, chronic sleep impairment. The March 2018 examiner noted the Veteran’s difficulty with memory and speech but attributed this to the stroke residuals and not her generalized anxiety disorder. The March 2018 examiner also diagnosed the Veteran with depressive disorder but opined that her depressive disorder was not related to her service. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, and are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Further, deficiencies in family relations are similar to difficulty in establishing and maintaining effective work and social relationships, which are contemplated by the assigned 50 percent rating. While the Veteran did experience symptoms contemplated by a 70 percent rating - the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The VA examiners also opined that although the Veteran suffers from low energy, difficulty with memory and concentration excessive worry, these symptoms may be associated with her stroke sequelae. In sum, the competent, probative evidence is against the claim for a rating in excess of 50 percent for a service-connected generalized anxiety disorder. 38 U.S.C. § 5107(b).   REASONS FOR REMAND Entitlement to service connection for a strike is remanded The Veteran contends that her stroke was caused by her service-connected disabilities, namely her generalized anxiety disorder. The November 2015 VA examination and opinion are inadequate because the examiner considered whether the Veteran’s anxiety was a direct cause of her stroke, but did not address aggravation. On remand, the Veteran should be given a new VA examination. Entitlement to TDIU is remanded The TDIU claim is inextricably intertwined with the service connection claim and adjudication of that issue will be deferred until the issues of increased rating are decided. The matters are REMANDED for the following action: 1. Contact the examiner who conducted the November 2015 examination, or another appropriate examiner, to obtain a supplemental medical opinion pertaining to residuals of the Veteran’s cerebral vascular accident. Copies of all pertinent records should be made available to the examiner for review. If the examiner deems an in-person examination is necessary, one should be scheduled. Following a review of the record, the examiner should offer an opinion as whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran’s stroke residuals are caused or aggravated by her service-connected anxiety. The examiner must ask about, consider and address the Veteran’s theory that her stroke is related to or aggravated by her service-connected anxiety. The examiner is informed that aggravation here is defined as any increase in disability; the fact that there is improvement now is not dispositive. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement TDIU M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.