Citation Nr: 20056785 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 14-39 847 DATE: August 27, 2020 ORDER An initial rating in excess of 30 percent for generalized anxiety disorder (GAD) is denied. FINDING OF FACT The Veteran’s GAD has caused symptoms consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity, or worse, has not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for GAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to October 1968. The case is on appeal from a January 2014 rating decision. In March 2018, the Veteran testified at a Board hearing. In a September 2018 decision, the Board denied service connection for peripheral neuropathy. At that time, the Board also remanded the GAD rating claim for further development. Additional evidence has been received since the March 2020 supplemental statement of the case (SSOC). In June 2020, the Veteran’s representative waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 30 percent for GAD. Legal Criteria 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. According to 38 C.F.R. § 4.130, DC 9400, a 10 percent evaluation is warranted for GAD where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent evaluation is warranted for GAD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, 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 evaluation is warranted for GAD where 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, 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, or 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; and the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is 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 and place; and memory loss for names of close relatives, own occupation, or own name. The specified factors for each incremental mental disorder rating are not requirements for a particular rating, but instead are examples providing guidance as to the type and severity of symptoms’ effects on social and work situations. Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Although certain symptoms must be present in order to establish the diagnosis of GAD, as with other conditions, it is not the symptoms but their effects that determine the level of impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While Global Assessment of Functioning (GAF) scores are included in the Veteran’s medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Background and Facts In the September 2018 remand, the Board noted that the current claim was filed within one year of a prior rating decision in August 2012 that granted service connection and assigned the initial 30 percent rating. On remand, the RO determined that new and material evidence was received within one year of that decision. Thus, the appeal period is essentially from the effective date of service connection for GAD—November 15, 2011. The Veteran contends his symptoms are more severe than captured during VA examinations and that his GAD has gotten worse since he had a nonservice-connected automatic implantable cardioverter-defibrillator (AICD) placed in October 2013. Prior to that, the Veteran was afforded a VA examination in March 2012. The diagnosis was GAD. The examiner characterized the severity as occupational and social impairment 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. Specific symptoms included depressed mood, anxiety, suspiciousness, pani attacks that occur weekly or less often, mild memory loss, difficulty in understanding complex commands and difficulty in adapting to stressful circumstances. The Veteran was afforded another VA examination in June 2013. During the examination, the Veteran noted that he worries about different circumstances beyond his health and that his worrying causes him a significant amount of anxiety. Along with worry, the Veteran also endorsed irritability, being easily fatigued, having difficulty concentrating, having muscle tension, and experiencing sleep disturbances. The Veteran provided that despite his symptoms causing a certain amount of distress, he rarely allows it to interfere with his work attendance or social engagements. The VA examiner noted that while the Veteran experiences a significant degree of distress, it does not reach a severe threshold as noted by his ability to continue being productive within his relationships with others and part-time work. The Veteran was found to have occupational and social impairment 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. The symptoms applicable to the Veteran’s GAD diagnosis were: anxiety, chronic sleep impairment, and disturbances of motivation and mood. Based upon a review of the Veteran’s records and the examination, the VA examiner concluded that the Veteran’s level of distress and overall level of impairment remain in the moderate range of severity. This is especially reflective in his involvement with family activities and maintaining his part-time job. He was afforded another VA examination in October 2014. The examiner noted the Veteran continued to report symptoms of GAD consistent with and at the same level of the June 2013 VA examination. He continued to endorse irritability, fatigue, and trouble concentrating. The examiner provided the Veteran has occupational and social impairment 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. The Veteran reported continuing to live in the same home with his wife of 48 years and having a close, supportive relationship with his two adult daughters. He also stated that he and his wife enjoy watching their grandchildren play sports and going out to eat with them. He continued to deny having any real friends, but, he provided this was not a recent change. During the October 2014 VA examination, the Veteran reported working part-time, 3 days a week, totaling 24 hours. He has worked at this liquor store for about 40 years. He did note that occasionally his irritability flares up with co-workers; however, this does not represent a change in his baseline working conditions within the last year. He also denied missing work due to anxiety or other mental health reasons. Since the June 2013 VA examination, the Veteran continued to receive therapy from a VA psychologist. He was also prescribed medication by a private primary care physician. Since June 2013, the Veteran denied having any other mental health treatment. The examiner also noted the Veteran denied any suicidal/homicidal ideation now or in the past, that he was fully oriented to person, place, and date, had immediate recall, and presented with mild anxiety and euthymic affect. Finally, the examiner reported the Veteran’s anxiety levels have not increased since June 2013 and that his level of functioning is consistent with moderate impairment. Another VA examination was afforded the Veteran in August 2019 pursuant to the Board’s September 2018 remand. The examiner provided the Veteran continued to have occupational and social impairment 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. The Veteran also continued to report having a good relationship with his adult children, grandchildren, and wife. Significantly, the Veteran now reported having a couple of friends. He continued to work part-time in a liquor store and continues to be prescribed Citalopram by his private primary care physician. The examiner found the following symptoms actively apply to the Veteran’s GAD diagnosis: anxiety, chronic sleep impairment, and disturbance of motivation and mood. Other than the occasional irritability issue with customers (1 time per month), the Veteran reported no significant occupational impairment due to mental health difficulties. Finally, having considered the medical record and the current examination, it is the examiner’s opinion that the severity and frequency of psychiatric symptoms, as well as his social and occupational impairment, fall within the range of mild symptomatology. Medical records from June 2013 provide the Veteran is sometimes hard on his wife due to his irritability. Additionally, he has trouble remaining asleep each night due to his inability to control worrisome thoughts. He has taken Citalopram daily for years because it helps decrease the intensity of the worry. An October 2014 medical note from his VA psychologist stated that his anxiety has been continually exacerbated by ongoing medical problems. The psychologist reported that his anxiety symptoms remain sever, as he remains unable to manage anxiety-provoking thoughts. During a typical week, the Veteran is greatly bothered by anxiety at least half of the days, usually the days he is not working. Evidence of record includes a March 2014 statement from the Veteran in which he states that his anxiety level has elevated due to his health issues; that he has difficulty in understanding complex commands; suffers impairment of short and long term memory, particularly forgetting to complete tasks; suffers from impaired judgment and impaired abstract thinking; disturbance of motivation and mood; has difficulty in establishing and maintaining effective work and social relationships; and has flattened effect. He did note, however, that his panic attacks are under control due to medication. At the March 2018 Board hearing, the Veteran testified that his anxiety level goes up and down all the time due to his other health conditions, particularly having a pacemaker/defibrillator. Analysis Based on the above evidence, the Board finds that an initial disability rating higher than 30 percent for the Veteran’s GAD is not warranted. Despite the Veteran’s reports of experiencing symptoms such as elevated anxiety level, difficulty in understanding complex commands, impairment of short and long term memory, impairment of judgment and abstract thinking, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and having flattened effect, the Board does not find this evidence persuasive enough to warrant a higher rating, given the Veteran has maintained a part-time job and relationships with his wife and grandchildren. Furthermore, evidence of record does not bear out that the Veteran’s psychiatric symptoms rise to the severity causing occupational and social impairment with reduced reliability and productivity, or worse. This conclusion is supported by the VA examination reports, treatment records and lay statements. Despite the Veteran’s contention that at least a 50 percent rating is warranted for his GAD, and contentions of memory impairment, flattened affect, and limited abstract thinking, the evidence of record does not support this rating or these symptoms as the Board finds the VA examination reports and medical records more persuasive as to severity level and exhibited symptoms. Additionally, the Veteran has been able to maintain part-time employment at the same location for 40 years and has maintained his marital and family relationships. While the Veteran provides that his irritability interferes with his social functioning at work and with his wife, such symptoms do not arise to the level of social impairment required for a 50 percent rating, as he has continued to maintain employment, his marriage, and a relationship with his daughters and grandchildren. The August 2019 VA examination report even provided the Veteran has a couple of friends, which is a significant change in comparison to the prior VA examination reports. Therefore, after conducting a holistic analysis, the Board finds that the evidence, to include lay evidence, shows that an initial rating in excess of 30 percent for the Veteran’s GAD is not warranted at any time. Because the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial rating in excess of 30 percent for GAD is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.