Citation Nr: 21000582 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 08-25 779 DATE: January 5, 2021 ORDER An initial rating higher than 50 percent for the service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, prior to November 8, 2007 is denied. A 70 percent rating for the service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, from November 8, 2007 to August 15, 2011, is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 8, 2007 is denied. A TDIU, from November 8, 2007 to August 15, 2011, is granted. FINDINGS OF FACT 1. Prior to November 8, 2007, the Veteran’s panic disorder with agoraphobia and depression had not been manifested by occupational and social impairment with deficiencies in most areas. 2. Resolving reasonable doubt in the Veteran’s favor, from November 8, 2007 to August 15, 2011, his panic disorder with agoraphobia and depression has been manifested by occupational and social impairment with deficiencies in most areas. 3. The Veteran is only service-connected for a panic disorder with agoraphobia and a major depressive disorder, single episode, (rated 50 percent prior to November 8, 2007 and 70 percent from November 8, 2007). 4. Prior to November 8, 2007, the Veteran’s service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, had not precluded him from securing or following a substantially gainful occupation. 5. Resolving reasonable doubt in the Veteran’s favor, from November 8, 2007 to August 15, 2011, his service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 50 percent for the service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, prior to November 8, 2007 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9412. 2. The criteria for a 70 percent rating, but no higher, for the service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, from November 8, 2007 to August 15, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9412. 3. The criteria for a TDIU prior to November 8, 2007 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 4. The criteria for a TDIU, from November 8, 2007 to August 15, 2011, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a September 2019 decision, the Board in part granted an initial 50 percent rating for the Veteran’s panic disorder with agoraphobia and depression prior to August 16, 2011 and a 70 percent evaluation on and thereafter—and also awarded a TDIU from August 16, 2011. He appealed that Board decision to the United States Court of Appeals for Veterans Claims. Pursuant to a joint motion for partial remand, in a July 2020 Order, the Court remanded that Board decision for readjudication in accordance with the joint motion. Increased Rating—Panic Disorder with Agoraphobia and Depression Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Service connection for the Veteran’s panic disorder with agoraphobia and a major depressive disorder, single episode, has been established effective February 28, 2007. Prior to August 16, 2011, his disability has been assigned an initial 50 percent rating under Diagnostic Code 9412. 38 C.F.R. § 4.130. The psychiatric symptoms listed in this rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Specifically, the criteria of Diagnostic Code 9412 provide for a 70 percent rating where the evidence shows 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 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); inability to establish and maintain effective relationships. The criteria also provide for a 100 percent rating where the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. Here, this disability is rated as 50 percent disabling from February 28, 2007 (effective date of service connection) to August 15, 2011. From August 16, 2011, this disorder is rated as 70 percent disabling. A June 2006 VA medical record shows that the Veteran was coping with his stress better with new medication but he was still experiencing elevated states of anxiety and planning to retire because work was very stressful. In an April 2007 statement, the Veteran indicated that he was in a constant state of panic and depression and that he has thought of suicide many times over the years. An April 2007 VA medical record reflects the Veteran’s report that he does not want to live another 20 years because of poor sleep, awakening frequently during the night due to nightmares and panic attacks. He stated that the anticipation of a panic attack is worse than the actual panic attack, and that he is thinking of retiring at age 62. He also stated that he no longer enjoys restoring antique cars like he used to, but he enjoys being with his children and grandchildren and is close to his third wife of 35 years, enjoying going on cruises with her. At a July 2010 VA examination, the Veteran reported that he has been married three times, remaining married to third wife, and he has seven children and one person he considers a friend. He reported panic attacks about twice per week and while he may not have any for several weeks, he worries about having the next attack and is anxious in between. He reported a depressed mood with apathy about living in his current state with no resolution to the panic attacks or sleep impairment, waking up 5 to 6 times during the night and feeling tired the next day. He was clean, neatly groomed, appropriately dressed, with spontaneous speech, cooperative attitude, appropriate affect, anxious mood, intact attention, full orientation, circumstantial thought process, unremarkable thought content, and no delusions, hallucinations, inappropriate behavior, or homicidal or suicidal thoughts. He had intact judgment, intact insight, good impulse control except in the context of alcohol abuse, no problems with activities of daily living, mildly impaired recent memory but normal remote and immediate memory, and ability to manage his finances. He stated that he was let go from his last job for creating a hostile work environment. He stated that his panic attacks interrupted his workday and contributed to his depressed mood and social interpersonal problems. The examiner indicated that the Veteran’s psychiatric disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. In a December 2010 statement, the Veteran expressed disagreement with the above VA examiner’s findings and conclusions, stating that the examination only lasted 10 minutes and that the examiner only asked a few questions and performed one small test. A September 2011 private mental capacity assessment indicates that the Veteran’s psychiatric disorder results in extreme impairment in the ability to complete a normal workday without interruptions, accept instruction and respond to criticism, and get along with coworkers; marked impairment in the ability to work with or near others, perform at a consistent pace during a normal workday, interact with the public, and maintain socially appropriate behavior, neatness, and cleanliness; and moderate impairment in the ability to carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual, and respond appropriately to changes in the work setting. In a separate examination report dated the same date, the above physician stated that the Veteran has depression nearly every day and suicidal ideation on several days, and has had multiple anxiety and panic attacks in the last four weeks. While examination was essentially normal, the physician noted that the Veteran had been fired from the last two jobs due to anger and difficulties with co-workers. The physician stated that the Veteran’s panic disorder renders him unemployable. In June 2016, the Veteran stated that he struggled to remain calm and focused in stressful situations when he worked and that his symptoms began to increase significantly after leaving his job in 2003, being fired from his last two jobs. A January 2017 statement from the Veteran’s last employer reflects that he last worked on November 7, 2007. An earnings record from the Social Security Administration (SSA) indicates that he last worked full time in 2007. Given the above, the VA examiner opined that the Veteran’s panic disorder with agoraphobia and depression results occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. That assessment falls squarely within the rating criteria for a 30 percent rating. Also, while the Veteran reported difficulty working and having only one friend, he was still able to work through November 7, 2007 and he had good relationships with family members. Moreover, examinations did not reveal obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. However, the other evidence of record suggests that the Veteran’s panic disorder with agoraphobia and depression resulted in a higher level of occupational and social impairment with deficiencies in most areas such as work, thinking, or mood. The Veteran’s April 2007 statement, April 2007 VA medical record, July 2010 VA examination report, and September 2011 private examination report all reflect near-continuous panic or depression and ongoing suicidal ideation. The September 2011 private mental capacity assessment reflects difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships, and suggest that the Veteran’s panic or depression affected his ability to function independently, appropriately, and effectively. Resolving reasonable doubt in the Veteran’s favor, the Board finds that, from November 8, 2007 (the day after his last day of work), his panic disorder with agoraphobia and depression has resulted in occupational and social impairment with deficiencies in most areas, mainly work and mood. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, a higher 70 percent rating is warranted from that date. An even higher 100 percent rating is not warranted as the evidence does not show any of the symptoms of a 100 percent rating. Even if the Board were to find that the Veteran’s psychiatric disability had resulted in total occupational impairment, it had not resulted in total social impairment, which is also required for a 100 percent rating. While the Veteran may have had significant difficulty working prior to November 8, 2007, as he remained gainfully employed until that time, the Board cannot find that he had a deficiency in work as contemplated in the 70 percent rating criteria. Similarly, while the Veteran may have had a deficiency in mood prior to November 8, 2007, as he was able to work, maintain good family relationships, and retained good judgment, the Board cannot find that his disability resulted in occupational and social impairment with deficiencies in most areas. Thus, an initial rating higher than 50 percent prior to November 8, 2007 is not warranted. In conclusion, the Board has resolved the benefit of the doubt in granting a 70 percent rating from November 8, 2007 for the service-connected panic disorder with agoraphobia and a major depressive disorder, single episode. However, as the preponderance of the evidence is against an even higher rating or an initial rating higher than 50 percent prior to November 8, 2007, those aspects of the claim must be denied. TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The Board has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). On a July 2012 claim for a TDIU, the Veteran indicated that his service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, prevents him from securing or following any substantially gainful occupation. He indicated that he last worked in November 2007. He indicated that he graduated from college and had no other education or training. He also indicated that he had been fired from his last job for creating a hostile work environment. The July 2010 VA examiner indicated that the Veteran’s psychiatric disorder only resulted in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The September 2011 private mental capacity assessment reflects that the Veteran’s psychiatric disorder impaired his ability to complete a normal workday without interruptions, accept instruction and respond to criticism, work with or near others, perform at a consistent pace during a normal workday, interact with the public, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and respond appropriately to changes at work. In the separate examination report, the physician noted that the Veteran had been fired from the last two jobs due to anger and difficulties with co-workers and opined that the Veteran’s psychiatric disorder renders him unemployable. The June 2016 statement from the Veteran reflects that he struggled to remain calm and focused in stressful situations at work and that his symptoms began to increase significantly after leaving his job in 2003. In a December 2016 psychological evaluation report, a private physician opined that the Veteran’s panic disorder with agoraphobia and depression has precluded him from securing or following substantially gainful occupation since 2009. In a May 2017 addendum, the physician opined that the Veteran’s psychiatric disorder has precluded him from securing or following substantially gainful occupation since 2007 when he last worked full time. The January 2017 statement from the Veteran’s last employer reflects that he last worked on November 7, 2007, and an earnings record from the SSA indicates that he last worked full time in 2007. Initially, the Board notes that the Veteran was gainfully employed full time through November 7, 2007. His actual employment in a substantially gainful occupation is prima facie evidence of employability. Faust v. West, 13 Vet. App. 342 (2000) (where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, “actual employability” for the purposes of 38 C.F.R. § 3.343 (c)(1)). Thus, a TDIU prior to November 8, 2007 is not warranted. In light of the above grant of a 70 percent rating for the Veteran’s panic disorder with agoraphobia and depression, his only service-connected disability, he met the schedular criteria for a TDIU on November 8, 2007. Thus, the remaining question is whether his service-connected psychiatric disorder precluded him from securing or following substantially gainful occupation since that time. As a TDIU already has been assigned effective from August 16, 2011, the period on appeal is limited to November 8, 2007 to August 15, 2011. Given the above, the VA examiner essentially opined that the Veteran’s panic disorder with agoraphobia and depression did not preclude him from securing or following substantially gainful occupation. However, the September 2011 private mental capacity assessment lists numerous occupational impairments due to the Veteran’s psychiatric disorder, and the private physician in December 2016 and May 2017 opined that the Veteran’s psychiatric disorder has precluded him from securing or following substantially gainful occupation since 2007 when he last worked full time. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his service-connected panic disorder with agoraphobia and a major depressive disorder, single episode, has precluded him from securing or following substantially gainful occupation since November 8, 2007. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Thus, a TDIU from November 8, 2007 to August 15, 2011 is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.