Citation Nr: 19150613 Decision Date: 07/02/19 Archive Date: 06/28/19 DOCKET NO. 17-62 363A DATE: July 2, 2019 ORDER An effective date of July 30, 2015, for a total disability rating based on individual unemployability (TDIU) is granted. A rating for a panic disorder in excess of 70 percent is denied. FINDINGS OF FACT 1. A July 30, 2015 VA treatment record documented a factually ascertainable increase in disability warranting entitlement to a TDIU. 2. Throughout the rating period on appeal the Veteran’s panic disorder has been manifested by symptoms that do not result in total social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier of July 30, 2015 for TDIU have been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. §§ 3.400(o) (2018). 2. The criteria for a rating in excess than 70 percent for a panic disorder have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9412 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board acknowledges that in his March 2017 notice of disagreement, the Veteran checked the box for “effective date of award” for his increased rating for panic disorder appeal. However, as no benefit was awarded in the April 2016 rating decision on appeal, there was no effective date assigned that could be appealed. The October 2017 statement of the case did not address this claim and as it is not a valid claim the Board finds no need to discuss it further. Earlier Effective Date - TDIU The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). However, an exception is available when the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” 38 C.F.R. 3.400 (o)(2). Here, the Veteran seeks entitlement to an effective date for his TDIU award prior to February 23, 2016. Specifically, in an April 2019 brief he contends that July 31, 2015, is the correct effective date because on that date a VA treatment record documents a “factually ascertainable” worsening of his mental health symptoms following the suicide of his daughter. In this case there is no disagreement about the receipt date of the formal claim for TDIU on July 6, 2016, or the fact that entitlement to a TDIU arose before that date. In a November 2017 rating decision, the RO granted entitlement to a TDIU and assigned an effective date of February 23, 2016, the date of an increased rating claim for his service-connected panic disorder. Essentially, the RO implicitly found the February 2016 claim established that it was factually ascertainable that the Veteran’s disability had worsened to the point that he could not maintain or secure substantially gainful employment due to his panic disorder. Thus, in order to warrant an earlier effective date, the evidence must show that entitlement to a TDIU arose (i.e., the requisite disability level was factually ascertainable) prior to February 23, 2016. The Veteran met the schedular requirements to consider a TDIU long before 2015, as his panic disorder has been rated 70 percent disabling since December 2012. The only question before the Board then, is whether it was factually ascertainable that the panic disorder rendered him unable to secure and follow a substantially gainful occupation between July 6, 2015 (one year before the receipt of claim) and February 23, 2016. A review of the record demonstrates that the Veteran has not worked full time since at least 2008. Multiple VA examinations and treatment records indicate that his panic disorder symptoms interfere with employment. An April 2014 VA examiner stated, “panic attacks have interfered with attendance and productivity, which has caused difficulty maintaining employment.” A March 2016 VA examiner noted prior resignation due to mental health problems, including panic attacks, difficulty concentrating at work, and that regular absences due to panic attacks make it difficult to maintain employment. Two of the symptoms that are regularly reported by VA as a basis for his 70 percent disability rating are difficulty in establishing and maintaining effective work relationships and in adapting to stressful circumstances, including work. Given the clear history of an individual unable to maintain employment due to panic attacks and symptoms of his service-connected mental health both before and after February 23, 2016, the Board agrees with the Veteran that the July 30, 2015 VA treatment record establishes a factually ascertainable increase in disability entitling him to a TDIU. An earlier effective date of July 30, 2015 is granted for TDIU. Increased Rating for a Panic Disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Veteran’s service-connected panic disorder is rated 70 percent disabling from December 27, 2012 under DC 9412. He timely appealed an October 2016 rating decision denying his February 2016 claim for an increased rating of his panic disorder in excess of 70 percent. Therefore, the relevant evaluation period for this appeal is from the date of the February 2016 claim. A 100 percent rating for panic disorder is only available if the Veteran’s symptoms result in total social and occupational impairment. The Veteran is totally occupationally impaired and compensated for that impairment with a TDIU. The Board finds that the evidence does not demonstrate that his panic disorder results in the total social impairment required for a 100 percent disability rating. The record shows significant social impairment due to panic disorder. For example, during a March 2016 VA examination, the Veteran reported being twice divorced. He had lived with his daughter and her boyfriend but after his daughter’s suicide in July 2015, he had lived alone. Going to the store and being around other people (for fear of how he would be perceived) further increased his anxiety. The examiner found symptoms of social withdrawal and difficulty in establishing and maintaining effective relationships. These symptoms are contemplated by his existing 70 percent rating for social impairment with deficiencies in most areas, including relationships. Indeed, that rating contemplates social impairment as severe as an “inability to establish and maintain effective relationships.” The Board does not find total social impairment because the evidence during the appeal period shows he is maintaining positive relationships with people in his life. A February 2016 VA social work note indicates supportive family and/or friends. He was allowing a friend to live with him after the friend lost his job and reported having one close friend. At the March 2016 VA examination the Veteran reported receiving regular visits from his son and grandson and remaining “kind of close” to his siblings, particularly his sister. He also reported having some supportive friends. February 2018 VA treatment records show some conflict with a brother relating to their father’s death, but his son still visited him regularly. He was not seeing his grandson as often but this appears to be due to circumstances beyond his control and not related to his panic disorder. On the contrary, evidence shows he cares deeply for and consistently exhibits a desire to help take care of his grandson. (Continued on the next page)   This evidence shows while the Veteran has significant social impairment, he is not totally socially impaired. Thus, the appeal for a rating in excess of 70 percent for a panic disorder is denied. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. F. Hamilton, 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.