Citation Nr: 20021545 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-11 096 DATE: March 26, 2020 ORDER An effective date earlier than February 21, 2003, for panic disorder with agoraphobia is denied. An initial rating higher than 70 percent for panic disorder with agoraphobia is denied. FINDINGS OF FACT 1. The Veteran did not submit a claim of service connection for an acquired psychiatric disability within one year of her separation from service. 2. In a July 2001 rating decision, the RO denied service connection for anxiety disorder; the Veteran did not complete an appeal of that decision. 3. The Veteran’s ultimately successful claim of service connection for panic disorder with agoraphobia was an untimely VA Form 9 received on February 21, 2003. 4. The severity, frequency, and duration of the Veteran’s panic disorder with agoraphobia symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 21, 2003, for panic disorder with agoraphobia have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 2. The criteria for an initial rating higher than 70 percent for panic disorder with agoraphobia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9412 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to January 1996 with additional service in the Air National Guard of Puerto Rico. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for panic disorder with agoraphobia, assigning a 50 percent rating effective February 21, 2003. The Veteran appealed both the effective date and the initial rating. In an October 2014 Decision Review Officer (DRO) decision, the effective date was changed to March 7, 2001. A March 2019 DRO decision found this earlier effective date to be clearly and unmistakably erroneous as it lacked legal grounds and returned the effective date to February 21, 2003. This DRO decision also increased the Veteran’s initial rating for panic disorder with agoraphobia to 70 percent. This increased initial rating is reflected on the title page. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the staged claim remains on appeal, as reflected above. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Earlier Effective Date 1. An effective date earlier than February 21, 2003, for panic disorder with agoraphobia The Veteran is seeking an effective date earlier than February 21, 2003, for panic disorder with agoraphobia. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). For claims filed prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. See 38 C.F.R. § 3.155 (a) (2014). Here, the Veteran separated from service in January 1996. In March 1996 she filed a claim of entitlement to service connection for scoliosis, fibroma/cyst of the right breast, back condition, and arthritis. This claim did not include any reference to a psychiatric disability. No other claim was received within one year of the Veteran’s separation from service. The Veteran filed her initial claim of service connection for nervous condition in March 2001. This claim was denied in a July 2001 rating decision. The Veteran’s notice of disagreement was received in July 2002. The RO issued a statement of the case on December 11, 2002. The Veteran did not submit a timely VA Form 9 or its equivalent within 60 days of that statement of the case and the July 2011 rating decision became final. See 38 C.F.R. §§ 20.302 (b), 20.1103 (2002). The Veteran submitted an untimely VA Form 9 that was received on February 21, 2003. This was treated as a claim to reopen and forms the basis for the current effective date of the eventual grant of service connection for panic disorder with agoraphobia. As explained above, the prior denial became final 60 days after the statement of the case was issued (February 9, 2003). The Veteran’s untimely VA From 9 was received almost two weeks later. In the time between the issuance of the statement of the case and the untimely VA Form 9, the only communications from the Veteran dealt with requests under the Privacy Act. As such, there is no communication that can be deemed either a timely substantive appeal or an earlier claim to reopen. As noted above, 38 C.F.R. § 3.400 (q)(2), provides that the effective date of the grant of service connection after the receipt of new and material evidence following a final disallowance is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Here, the Veteran has already received an effective date of February 21, 2003, the date the untimely VA Form 9 (which was treated as a claim to reopen). As such, an earlier effective date for the grant of service connection for panic disorder with agoraphobia is not warranted. Therefore, the effective date for the grant of service connection for panic disorder with agoraphobia can be no earlier than February 21, 2003, the date the untimely VA Form 9 (which was treated as a claim to reopen) was received by VA. The appeal must be denied. There is no reasonable doubt to be resolved as to this issue. Increased Initial Rating 2. An initial rating higher than 70 percent for panic disorder with agoraphobia The Veteran contends that her symptoms of panic disorder with agoraphobia warrant a 100 percent rating. As an initial matter, the Board notes that the Veteran has been in receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the entire appeals period. Additionally, she was in receipt of special monthly compensation pursuant to 38 U.S.C. § 1114 (s) (housebound)from February 21, 2003, to April 25, 2013, which is when she was awarded a total (100 percent) rating for epilepsy and increased special monthly compensation benefits pursuant to 38 U.S.C. § 1114 (1) (aid and attendance). As such, the question of TDIU due to panic disorder alone is moot. Cf. Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran had a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability or disabilities in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate)); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). Below, the Board will address whether the Veteran’s symptoms of panic disorder with agoraphobia result in is both total occupational and total social impairment. 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 issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned 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. Here, the record shows that the Veteran’s episodes of agoraphobia result in an inability leave her home. The frequency of the Veteran’s agoraphobic episodes increased significantly during the appeals period to the point where she reports currently only being able to leave the house for medical appointments with periods of inability to do even that. This physical isolation inherently impacts the Veteran occupational and social functioning. The question remains whether the result of this disability is both total occupational and total social impairment. The Veteran has not worked since her separation from service and has been in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the entire period on appeal. In March 2007, the Social Security Administration (SSA) found the Veteran disabled as of December 31, 2001, due to anxiety related disorders and other disorders of the nervous system: neurological conditions. A December 2005 Comprehensive Vocational Evaluation Services Exit Summary found that the Veteran isolated at home and only left when necessary, like to pick up her daughters. This evaluator found that the Veteran was not mentally or emotionally prepared to obtain a job and recommended that she try volunteering part-time for a few months. Similarly, the Veteran was denied VA vocational rehabilitation service in September 2010 as the rehabilitation counselor found that the Veteran’s disabilities made in unreasonable to expect her to be able to use the program to get and keep competitive employment. The record does not indicate that the Veteran attempted to volunteer. Based on the above, total occupational impairment is conceded. The record does not show gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or any associated symptoms. The Veteran has been able to perform activities of daily living throughout the appeals period, but she has increasingly required assistance with instrumental activities of daily living, particularly those activities that require leaving the house. In 2000, the Veteran divorced the father of her children. Despite this, he appears to have been the Veteran’s primary caregiver for much of the appeals period. They remarried in June 2017 and in subsequent VA treatment records, the Veteran has described him as her husband of 30 years. When the Veteran was homeless for a while during the appeals period, she reported being taken in by friends of her ex-husband. See e.g., July 2011 VA treatment record. She then inherited her mother’s apartment following her death in December 2011. In a December 2018 letter, I.R., described herself as the Veteran’s neighbor of 40 years, thereby encompassing a large part of the Veteran’s childhood when she presumably was living there with her mother. I.R. noted that she and the Veteran were in constant communication and the Veteran’s husband often asked I.R. to visit the Veteran so she was not left home alone. Additionally, the Veteran has reported some memory impairment including frequent forgetfulness in daily/routine activities like taking her medication. i e.g., August 2010 VA treatment record. There is no indication, however, that she has experienced memory loss for names of close relatives or own name. The Veteran has two daughters, born in 1992 and 1996. August 2003 VA treatment records state that she was able to take appropriate care of her daughters despite her disability. In June 2006, however, both girls were removed from her home and thereafter lived with the Veteran’s sister. Subsequent treatment record show that she was unable to regain legal custody of her daughters. This custody battle strained the Veteran’s relationships with her mother, who had previously been a source of support, and her sister. Her relationship with her siblings was further strained following the death of her mother in December 2011 and some disputes about her estate. As of March 2018, the Veteran reported living with her husband and their adult daughters. I.R.’s December 2018 letter does not mention whether the Veteran’s daughters were living with her, but seems to suggest that they were not. Based on the above, the Veteran has been able to maintain relationships with her husband and a neighbor throughout the entire appeals period. As such, while significant social impairment is evident, total social impairment is not shown. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.