Citation Nr: 20054294 Decision Date: 08/17/20 Archive Date: 08/17/20 DOCKET NO. 14-13 241 DATE: August 17, 2020 ORDER Entitlement to a rating in excess of 50 percent for anxiety neurosis with dysthymic disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s anxiety neurosis with dysthymic disorder symptoms does not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for anxiety neurosis with dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript is of record. The Board remanded this appeal for further development in May 2018. There has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to a rating in excess of 50 percent for anxiety neurosis with dysthymic disorder is denied. The Veteran seeks an increased rating in excess of 50 percent for anxiety neurosis with dysthymic disorder (anxiety); specifically, he seeks a 70 percent rating. He contends that his VA examinations reflect that he exhibits mental health symptoms which could interfere with interpersonal relatedness, concentration and memory, and his ability to tolerate stress and motivation. The appeal period before the Board begins on August 24, 2014, one year prior to the date of claim for an increased rating. 38 C.F.R. § 3.400; Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the reasons that follow, the Board finds that a rating in excess of 50 percent is not warranted. The Veteran’s anxiety has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9400. Under the 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 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. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned when there is 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 conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events).. 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. VA intends the General Formula to provide a regulatory framework for placing veterans on a disability spectrum based on their objectively observable symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). Accordingly, in evaluating the Veteran’s disability the Board will place great probative value on the Veteran’s observable symptoms as demonstrated in clinical treatment notes and mental status evaluations. VA and private treatment records, VA examinations reports dated in October 2015, November 2017, and April 2019; and the Veteran’s lay statements show that his anxiety disorder has manifested by symptoms associated with: a 30 percent rating (depressed mood, anxiety, chronic sleep impairment, mild memory loss); a 50 percent rating (disturbances of motivation and mood, flattened affect); and also a 70 percent rating (passive suicidal ideation – noted once, irritability). He also had symptoms that were not listed with a specific rating, such as anger, interference with interpersonal relatedness, and concentration. Turning to the evidence of record, the October 2015 VA examination report indicates that the Veteran reported experiencing “ups and downs” due to his mental health symptoms, specifically his anxiety. He reported that he got along well with his children and felt anxious all the time about things ranging from the economy, his family, to his health. He also reported difficulty sleeping for more than four hours per night. He described feeling angry and irritable and having road rage. He expressed that at times he felt depressed and it is usually related to his anxious thoughts, which caused him to think about being a failure. But he also indicated that he felt very close to and connected with his wife, children and friends. The examiner noted the Veteran’s symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbance of motivation and mood. On observation, the examiner reported that the Veteran arrived on-time and appropriately dressed for his appointment. On mental status examination, the Veteran was noted to be cooperative, pleasant, and did not exhibit signs of psychomotor agitation. His speech was clear, thought process coherent and logical. His affect was congruent with access to full range. The examiner also noted that the Veteran credibly denied past and present suicidal or homicidal ideation, intent, or plans, and hallucinations. The examiner reported that the Veteran’s mental health symptoms appeared to have a moderate impact on social and occupational functioning. In the examiner’s opinion, the Veteran’s level of occupational and social impairment was best summarized as ‘a mental condition with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.’ In both January and April 2016, while receiving medical treatment at a VAMC, the Veteran denied depression, anxiety, suicidal and homicidal ideations, as well as hallucinations. However, a May 2016 treatment note from a VAMC staff nurse who spoke with the Veteran over the phone, noted that the Veteran reported crying all the time, having temperamental moods, difficulty sleeping, and increased anxiety for the last six months; he denied suicidal and homicidal ideations. The Veteran reported being financially stressed “like anyone normally would” and agreed to a mental health consultation. In a July 2016 VA mental health note, the Veteran reported that family conflict, financial strain, and academic stress over the last four months resulted in his increased anxiety, and prompted him to seek mental health treatment. He described his symptoms as “increased anger over any little thing,” agitation, difficulty sleeping and weight loss – which was partially due to other medical conditions. The Veteran indicated that he experienced increased conflict with his wife and children but that he had a positive relationship with his grandchildren. The psychologist observed that the Veteran was cooperative, pleasant, spoke at a normal rate – clear and fluent. The Veteran presented with a dysthymic mood and his affect was broad in range, appropriate to content, but he was tearful at times. The psychologist indicated that the Veteran continued to meet the criteria for general anxiety disorder as he endorsed feeling nervous, anxious or on edge, not being able to control worry, irritability, anticipation of the worst, and trouble relaxing. The psychologist also indicated that the Veteran met the criteria for a diagnosis of major depressive disorder based on the nearly daily presence of symptoms such as: loss of interest, feeling depressed/down, trouble falling/staying asleep, fatigue, difficulty concentrating, for a minimum of two weeks. A psychiatry note in September 2017 shows that the Veteran experienced a heightened level of stress that year. He reported ongoing depression and anxiety, along with continued anger issues. His brother passed away of a heart attack that May and his niece was murdered in August. The Veteran also had surgery on his right hand and was scheduled to have a second procedure later that year. He and his wife were not having intercourse as much due to his prostate and they were sleeping in separate rooms. Despite these stressors, the Veteran remained active in the Alcoholics Anonymous community. The social worker observed that the Veteran presented neatly and appropriately dressed, exhibiting good attention to grooming. He was punctual, pleasant and cooperative during the interview process, and he denied suicidal ideation. The Veteran was afforded another VA examination in November 2017. There he reported that since his last VA examination in 2015, he and his wife were experiencing marital problems and considering divorce; they were constantly arguing. Although things were not well between the Veteran and his sons, he reportedly had a good relationship with his daughters. The Veteran shared that he had a few friends in recovery like him but ended several friendships with those who remained active drug users. The Veteran also shared that due to multiple medical procedures which hindered his participation, he was forced to discontinue his educational program in January. On mental status examination, the examiner indicated that the Veteran’s symptoms were depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbance of motivation and mood, and suicidal ideation. The examiner observed that the Veteran was pleasant and cooperative; he maintained intermittent eye contact, was rather soft spoken and presented as a shy and dejected individual. His affect was observed to be congruent with his reported depressed and anxious mood. The examiner noted that the Veteran denied the experience of homicidal ideation but endorsed passive suicidal ideation. The examiner opined that the Veteran’s level of occupational and social impairment was best summarized as ‘a mental condition with reduced reliability and productivity.’ At his Board hearing in March 2018, the Veteran testified that his mental health condition had worsened due to recent stressors. He testified that within the past ninety days, he and his wife had separated twice and were currently on their third separation. He recalled that three weeks prior to the hearing, his wife contacted law enforcement because she thought her life was threatened; she packed her belongings and left him. The Veteran reported being isolated since his wife’s departure three weeks earlier and consequently gave up his sobriety. He also testified that he thought he was a danger to himself because he lacked control over his anger and was “blowing up” without provocation. The Veteran discussed an encounter that occurred in 2017 with a person he knew from his former place of employment which turned into a verbal confrontation due to his anger. He described getting three to four hours of sleep due to sleep impairment; he reported a lack of appetite, irritability and quick temperedness. At a September 2018 mental health visit, the Veteran reported that his niece’s murderer was sentenced the day before, and that his wife left him earlier that year, the day after his birthday. He reported having anxiety and depression. The social worker noted that the Veteran presented cooperative, pleasant, and reasonable. He was casually dressed and well-groomed. He had good eye contact, normal speech, and his thoughts were clear, organized and appropriate to the subject. The Veteran denied any current suicidal or homicidal ideation. Over the next few months at his VA mental health appointments, the Veteran discussed his separation from his wife, relationship with his sons and his frustration with their lack of understanding regarding his absence during their childhood. He also reported that he still got anxious and upset. Treatment notes reflect that the Veteran had an active prescription for anxiety. In December, the Veteran reported that he wanted to pursue couples treatment with his wife. In April 2019 the Veteran underwent a contract VA examination where he endorsed excessive anxiety and/or worry, difficulty controlling the worry, restlessness, being easily fatigued, irritability, difficulty concentrating and sleep disturbances. He reported that he and his wife separated a year earlier and that he lived alone. The examiner noted that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbance of motivation and mood. On observation, the examiner reported that the Veteran arrived early, appropriately dressed, and well-groomed for his appointment. His energy level was average, and mood was depressed. The Veteran’s speech was normal and thought process logical and goal directed. His affect was flat. There was no indication of suicidal or homicidal ideation. The examiner diagnosed the Veteran with generalized anxiety disorder and persistent depressive disorder (dysthymia) moderate. The examiner opined that the Veteran’s level of occupational and social impairment was best summarized as ‘a mental condition with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.’ A month later, during a follow-up treatment for depression in May 2019, the Veteran reported he was doing well until he was served with divorce papers by his wife. He indicated that while he was worried about the divorce, he was not down about it. He shared that he continued to attend Alcoholics Anonymous meetings, felt supported and spent time with his children and grandchildren. The Veteran denied suicidal ideation or self-harm and reported that he had poor concentration. By December 2019 the Veteran reported that he felt ‘good’ about his divorce which was finalized in August. The mental health treatment note shows that the Veteran denied sadness and suicidal ideation. He reported being in a good mood and requested that his medication, which was refilled in November, remain the same. He also ended his therapy sessions. Although the Veteran believes he is entitled to a higher rating, specifically 70 percent for his anxiety disorder, the evidence of record does not support this increase. Based on the evidence of record, 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, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The record demonstrates that these symptoms were not present daily and fluctuated in severity. Further, the Veteran’s anger, irritability and impaired concentration are akin to disturbances of motivation and mood which is contemplated by the assigned 50 percent rating. His impaired interpersonal relatedness is similar to difficulty in establishing and maintaining effective work and social relationships also contemplated by the assigned 50 percent rating. Overall, the evidence of record does not show that the Veteran’s symptoms – listed and unlisted – caused occupational and social impairment with the frequency, severity, or duration contemplated by a 70 percent rating. The Veteran has contended that he had problems managing his anger and was irritable. He testified that he thought he was a danger to himself because he lacked control over his anger and was “blowing up” without provocation. See Hearing Tr. p. 4. He also reported that he had arguments with his wife and at one point she was fearful. Yet, the record does not demonstrate that the Veteran’s that his unprovoked irritability was a frequent occurrence or that his irritability resulted in behavior that more closely approximated impaired impulse control with periods of violence. Though the Veteran testified that he was involved in a verbal altercation in 2017, it did not escalate to physical violence. This is relevant because it demonstrates that although the Veteran may have had moments of unprovoked irritability (such as this public confrontation) he had the ability to manage his anger enough to walk away from what could have been a physical altercation. This further demonstrates that his judgment was not seriously impaired. The October 2015 VA examination report also indicates that the Veteran exhibited good judgment and impulse control. The Veteran has reported that his anxiety disorder interferes with interpersonal relatedness, however the record does not show that he is unable to establish and maintain effective relationships or despite having some difficulty in doing so. Although he is retired, the Veteran took vocational courses to assist him in obtaining a job in the clerical field. Vocational notes report that the Veteran got along well with others in the classroom and the instructor, he was active, eager to learn and had great attendance. Though the Veteran discontinued his classes, the records indicates that it was due to his physical health and a medical procedure, not his mental health. Although the Veteran experienced some marital discord, and ultimately separation from his wife- he is not unable to establish and maintain other social relationships. The Veteran has reported that he has a close relationship with his family and feels supported; his children and grandchildren visit him at home, and he has friends. He reported coaching his grandchildren in their athletic endeavors, occasionally attending alcoholics anonymous meetings, and is active with bible study. While the Board recognizes the Veteran’s contention that the October 2015 VA examiner indicated his mental health symptoms could interfere with interpersonal relatedness, concentration and memory, and his ability to tolerate stress and motivation, the examiner also reported in her professional opinion that the Veteran’s level of occupational and social impairment was best summarized as ‘a mental condition with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.’ This assessment is more in line with a 10 percent rating. The record reflects that the Veteran reported suicidal ideation once; however, the presence of suicidal ideation alone does not warrant a 70 percent rating. Rather, a holistic assessment must be taken. The severity, frequency, and duration of the Veteran’s suicidal ideation, along with effect of his other psychiatric symptoms does not support the assigment of a70 percent rating. The November 2017 VA examiner who noted the Veteran’s suicidal ideation also indicated he reported ‘passive’ ideation. Meaning, this was not an active or on-going thought held by the Veteran. Further, there is only a single report of such ideation. The Veteran frequently denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during his October 2015 and April 2019 VA examinations. Moreover, the November 2017 VA examiner indicated that despite the Veteran’s passive suicidal ideation, and his other symptoms and impairment, his overall level of occupational and social impairment was best summarized as ‘a mental condition with reduced reliability and productivity.’ As this assessed level of impairment would be more akin to a 50 percent rating, it cannot be said that the severity, frequency, and duration of the Veteran’s suicidal ideation rises to the level contemplated by the 70 (or even 100) percent disability rating. The record does not reflect other types of symptoms that would support the assigment of a 70 percent rating such as 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; or impaired abstract thinking. The November 2017 mental status exam failed to elicit evidence of perceptual or thought disturbances. The April 2019 VA examination report noted that the Veteran’s thought process was logical and goal oriented and no unusual perceptual disturbances were observed. Examination reports, mental status exams and psychotherapy sessions have reported the Veteran’s speech, though soft-spoken at times, as normal. There was no evidence of near-continuous panic or depression affecting the Veteran’s ability to function independently, appropriately and effectively. The Veteran has been able to interact appropriately and engaged easily during objective psychological evaluations. Looking at his October 2015 VA examination report, the examiner found that the Veteran’s mental health symptoms appeared to have a moderate impact on occupation and social functioning and summarized the Veteran’s impairment as causing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Likewise, the November 2017 VA examiner also reported that the Veteran’s depressive and anxious symptoms caused moderate occupational and social impairment, and summarized his impairment as causing reduced reliability and productivity. In sum, the cumulative evidence suggests that the Veteran’s disorder has not resulted in symptoms that are so severe as to warrant a 70 percent or higher evaluation. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. Accordingly, a rating in excess of 50 percent is not warranted. The preponderance of the evidence therefore weighs against the claim and it must be denied. VA’s benefit-of-the-doubt doctrine does not apply in these circumstances. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Telamour, 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.