Citation Nr: 20060703 Decision Date: 09/16/20 Archive Date: 09/16/20 DOCKET NO. 181204-1264 DATE: September 16, 2020 ORDER Entitlement to an initial 50 percent rating for anxiety disorder with cognitive disorder is granted. FINDING OF FACT The Veteran’s anxiety disorder with cognitive disorder is shown to have been manifested by a disability picture reflecting occupational and social impairment with reduced reliability and productivity; the severity, frequency, and duration of his symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 50 percent rating, and no higher, for anxiety disorder with cognitive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 1966 to March 1968, including a tour of duty in the Republic of Vietnam. A rating decision was issued under the legacy system in June 2017, which granted service connection for anxiety disorder with cognitive disorder and assigned a 30 percent rating, effective August 22, 2012. In July 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in November 2018, which is the decision on appeal. The Board may only consider the evidence of record at the time of the RAMP opt-in. 38 C.F.R. § 20.301. An April 2019 Board decision denied a rating in excess of 30 percent for the anxiety disorder with cognitive disorder, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). A March 2020 CAVC Memorandum Decision vacated the Board’s decision and remanded the matter for further proceedings consistent with the Memorandum Decision. Entitlement to a rating in excess of 30 percent for anxiety disorder with cognitive disorder is granted. The Veteran contends that his psychiatric symptoms manifest in impairment that warrants at least a 70 percent rating. He essentially asserts that proper weight has not been given to the clinical findings of his private psychiatrist, with whom he has had an ongoing relationship, and that he is entitled to the benefit of the doubt in the determination of whether a higher rating is warranted. 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 50 percent or higher. This case has been remanded from the CAVC. After further review, the Board concludes that the evidence considered in this appeal (i.e., the records on file at the time of the receipt of the Veteran’s RAMP opt-in on July 14, 2018) supports the Veteran’s claim to the extent that a 50 percent rating, and no higher, is warranted. That is, his symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher; rather, his 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. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999) When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. The Veteran’s anxiety disorder with cognitive disorder has been assigned a 30 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9400, for generalized anxiety disorder, ever since service connection was established effective August 22, 2012. (Unspecified neurocognitive disorder, under Code 9310, uses the same evaluation criteria.) Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed following that phrase are not intended to constitute an exhaustive list, but rather 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). Accordingly, the evidence considered in determining the level of impairment from anxiety disorder with cognitive disorder under 38 C.F.R. § 4.130 is not restricted to those symptoms listed in the rating criteria. Instead, VA must consider all symptoms of a claimant’s condition that affect occupational and social impairment, including, if applicable, those identified in DSM-5. The criteria under the applicable codes are as follows. 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. The pertinent evidence consists of an April 2013 VA posttraumatic stress disorder (PTSD) examination, “buddy” statements in 2013, VA mental health outpatient treatment records, and treatment records from a psychiatrist, H.J, M.D. The private treatment records are much more extensive, as most of the Veteran’s mental health treatment was received in a non-VA setting. The records show that the Veteran’s anxiety disorder with cognitive disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss); with a 50 percent rating (flattened/dull affect, panic attacks possibly occurring once per day, impairment of short and long-term memory, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships); and with a 70 percent rating (suicidal ideation and difficulty in adapting to stressful circumstances). The Board finds the severity, frequency, and duration of these listed 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. For example, in addition to having most of the symptoms for a 30 percent rating, the Veteran’s affect transitioned from congruent with mood to dull. He reported on a December 2013 private record that he experienced daily panic attacks when he was exposed to triggers; even though the records do not show he consistently complained of panic attacks, his private physician continued to cite panic disorder as a diagnosis. While memory loss – related to his cognitive disorder – was generally noted as being mild, it was a persistent impairment reported throughout the appeal period in VA and private records (the Veteran complained that he misplaced items). Mood and motivation disturbances were reflected in the frequent notation of having a mood that included anxiety and depression, in the fact that he continually took medication for his depressive disorder (which his private physician characterized as moderate to severe), and in the records indicating he had no hobbies or personal interest in anything other than watching TV (beyond working in a job performing light maintenance for local apartment buildings). Of his depressive mood, the Veteran indicated on a July 2013 VA record that he felt depressed about half of the time. Throughout, he maintained part-time work, but there were consistent reports of difficulty with relationships. He had acquaintances, not friends, and his long-time marriage was described as stable yet marked by frustration and increased irritability. The Board recognizes that there are inconsistencies within the assessments furnished by the VA and by the private psychiatrist. The disability picture presented by the VA examiner in April 2013 was best summarized as productive of social and occupational impairment that approximated the criteria for non-compensable rating (i.e., very slight impairment in social functioning or symptoms not severe enough either to interfere with occupational and social functioning or to require continuous medication). Yet, in treatment records spanning from 2012 through 2017, the Veteran’s private physician prescribed two different medications (for anxiety and depressive symptoms and for sleep impairment) and described psychiatric symptoms that resulted in a clearly greater level of impairment (his diagnosed major depressive disorder was found to be moderate to severe). Furthermore, the VA examiner related that the Veteran tended to his daily living activities and held positions of responsibility and leadership in church and civic organizations (e.g., NAACP), whereas the private physician did not discuss such positions and indicated on a March 2014 progress note that the Veteran had problems with socialization, stayed home most of the time (outside of work), and did not go anywhere unless he had to go. A September 2013 progress note only referred to the Veteran’s part-time maintenance job that was “keeping him busy” and taking the “edge” off so that he would not “go crazy,” but he also indicated that if the job was very “hectic,” the Veteran would have a “hard time.” The “buddy” statements from friends corroborate the Veteran’s activities in the community, but it is difficult to gauge the actual level of the Veteran’s involvement from the statements dated in March 2013. In such statements, it was noted the Veteran could be argumentative, suspicious, agitated, and prone to disassociate from others for a period of time. While the Veteran’s mental disorder reflects most, if not all, the criteria listed for a 30 percent rating, it also typifies many of the symptoms for a 50 percent rating. Given such approximation to the criteria for a higher rating, in addition to the impairment related to his many unlisted symptoms (as further described below), it is appropriate to assign a 50 percent rating. The Board notes that the Veteran expressed suicidal ideation on the VA examination, asserting that he had very occasional suicidal ideation without plan or intent to action on such thoughts. A July 2013 VA outpatient record indicates that he had passive fleeting thoughts of death. A July 2012 report from his private physician also notes that the Veteran had thoughts of killing himself in the past (but would not carry them out) and that sometimes he questioned if life was worth living. Suicidal ideation is a symptom associated with a 70 percent rating, but it is also similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board has considered the severity, frequency, and duration of the Veteran’s suicidal ideation but finds that it has not risen to the level contemplated by either the 70 percent or 100 percent disability rating. The Veteran regularly denied current thoughts, intent, or a plan involving self-harm in the majority of private records from 2012 to 2017 and denied current suicidal ideation in a July 2013 VA treatment record (and was deemed a low risk for suicidal behavior in a November 2016 depression screen). As earlier noted, the lay and medical evidence demonstrates that the Veteran also had symptoms that are not listed with a specific rating, and these are numerous, including flashbacks, nightmares, avoidance of people and discomfort in crowds, obsessive thought about being in danger, argumentative behavior, increased irritability and anger episodes, hypervigilance, hyperarousal/excessive startling, and difficulty with concentration. 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. It does not appear that these symptoms were present on a daily basis ((they would occur as circumstances arose e.g., when in a crowd) or were persistent. Further, many of these symptoms are similar to criteria contemplated by the 50 percent rating assigned. For example, hyperarousal is similar to panic attacks; irritability, anger, and argumentative behavior are similar to disturbance of mood; obsessive thought about being in danger is similar to impaired judgment; difficulty with concentration is similar to impaired abstract thinking; and avoidance of people and crowds is similar to difficulty in establishing effective relationships. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. He experienced occupational and social impairment with reduced reliability and productivity. The VA examiner noted the Veteran’s involvement in church and community activities and his part-time job. The treating psychiatrist likewise noted his job but did not discuss any of his church/community engagements, so the extent of the Veteran’s involvement is not clear, particularly over time. In any case, it is demonstrated that the Veteran is able to perform occupational tasks to some degree, but, as noted by the treating psychiatrist, he still had problems with socialization, stayed home most of the time, and would have a difficult time if his job was “hectic.” The record presents an inconsistent disability picture, but in considering the impact of his pervasive anxiety and depressed mood, coupled with the unlisted symptoms, the Board finds that the mental disorder approximates impairment productive of reduced reliability and productivity. While the Veteran did experience some symptoms contemplated by a 70 percent rating – suicidal ideation and difficulty in adapting to stressful circumstances – the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Additionally, as earlier noted, there was difficulty, not inability, in establishing and maintaining effective relationships. He maintained a long-standing marriage and had stable family relationships, according to the VA examiner. He was able to work part-time in the same job over the years. Moreover, his depressive symptoms did not affect his ability to function independently and effectively (he took care of all activities of daily living). In other words, while some of the Veteran’s symptoms may have been of a type found in the criteria for a 70 percent rating, the severity, extent, and persistence of such symptoms, as shown by the evidence, did not produce the level of impairment associated with a 70 percent rating. Although the evidence clearly demonstrates that the Veteran has significant social and occupational impairment attributable to his mental disorder, the disability picture for the period considered in this appeal is not one of deficiencies in most areas, but more consistent with the criteria for a 50 percent schedular rating under Code 9400. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debbie Breitbeil, 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.