Citation Nr: 20021822 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 12-08 153A DATE: March 27, 2020 ORDER Entitlement to an evaluation in excess of 50 percent from April 2, 2012 to December 10, 2019 and to an evaluation in excess of 70 percent since December 10, 2019 for an anxiety disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes the Veteran’s anxiety disorder more nearly approximated occupational and social impairment with reduced reliability and productivity from April 2, 2012 to December 10, 2019. 2. The preponderance of the evidence establishes the Veteran’s anxiety disorder more nearly approximated occupational and social impairment with deficiencies in most areas since December 10, 2019. CONCLUSIONS OF LAW 1. From April 2, 2012 to December 10, 2019, the criteria for an evaluation in excess of 50 percent for an anxiety disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. 2. Since December 10, 2019, the criteria for an evaluation in excess of 70 percent for an anxiety disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1980 to March 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2009 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified at a Travel Board hearing held before the undersigned Veterans Law Judge. A copy of that transcript has been associated with the electronic record. The Board remanded this claim in July 2017 to afford the Veteran a VA examination for his anxiety disorder. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity because of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s anxiety is currently assigned a rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned when there is 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. Id. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Id. A 100 percent evaluation 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; 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 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). Analysis The Veteran contends that he is entitled to an increased rating for his anxiety disorder. The Veteran was afforded a VA examination in December 2013. He was diagnosed with an anxiety disorder. The examiner indicated the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran reported anxiety after returning from a deployment to the Persian Gulf and his anxiety worsened until he reported having severe problems with sleep. The Veteran reported being tense in crowds and rarely going out. The Veteran reported a suicidal “gesture” in 2011 but never an attempt. The Veteran’s symptoms were listed as anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was afforded a VA examination for his anxiety disorder in December 2019. The examiner found the Veteran’s anxiety resulted in a level of impairment consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted the Veteran has been seeing a psychotherapist monthly, and at time quarterly. The examiner noted the only symptoms the Veteran was experiencing were anxiety and chronic sleep impairment. The Veteran was reportedly neatly groomed and dress on the day of the examination and was alert and oriented in all spheres. The Veteran’s long-term recall and short-term memory were intact, and his thought process were logical and goal oriented. The Veteran’s mood was euthymic and congruent, and he exhibited a normal range of emotional expressions that reflected appropriately the issues discussed. The Veteran’s AUDIT, PHQ9, and PCL5 scores were all within normal ranges. The examiner noted the Veteran was not considered at current imminent or increased risk for suicidal ideation. The Veteran reports that his anxiety has modulated some since 2013 as a result of years of continued psychotherapy and balanced medications. He has had fewer angry outbursts and has been more introspective. He maintains low conflict social relationships with his sister and girlfriend, which is also an improvement since 2013, but not to the point where he can maintain gainful employment. The examiner noted that provided that he takes his current medication combination, the Veteran’s symptoms of headache, insomnia, anxiety, and irritability are modulated to a point of moderate functional capacity. Treatment records consistently reflect the Veteran is oriented and groomed, attends his scheduled appointments on time, and his symptoms are controlled by medication. There is no indication of suicidal ideation after the Veteran was hospitalized in January 2011 for suicidal ideation with a plan to kill himself with a shotgun. The record reflects that during the period on appeal, the Veteran was functioning relatively well in managing his anxiety through medication. The Board notes the Veteran’s testimony during July 2016 Board hearing. The Board has considered the Veteran’s statements regarding the severity of his anxiety. However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record, to include the VA opinion. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). The Board observes that at no point during the relevant period did the Veteran experience the total social and occupational impairment consistent with a 100 percent rating. These symptoms include 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. Limitations of this degree have never been noted during the VA examinations or in the clinical findings from psychiatric treatment, which consistently reflect the Veteran behaved appropriately, his memory was intact, and there were no limitations to activities of daily living. Accordingly, the Veteran never met the criteria for a 100 percent rating for total social and occupational impairment during the relevant period. During the period from April 2, 2012 to December 10, 2019, the Veteran also did not meet the criteria for a rating in excess of 50 percent. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. The Veteran had some limitations during this time to his anxiety, but the Veteran’s functioning was consistently superior to the level of impairment required for a 70 percent rating. For example, the Veteran was able to maintain dating and family relationships, maintain hygiene, his mood and behavior were appropriate, and otherwise manage his anxiety through medication. As such, the Board finds that a rating in excess of 50 percent from April 2, 2012 to December 10, 2019 and a rating in excess of 70 percent since December 10, 2019 is not warranted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, 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.