Citation Nr: 21000586 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-44 673 DATE: January 5, 2021 ORDER From August 15, 1972 through June 30, 1975, a rating of 70 percent for anxiety disorder is granted. From July 1, 1975 through June 28, 2006, a rating in excess of 30 percent for anxiety disorder is denied. From June 29, 2006 through November 22, 2007, a rating of 70 percent for anxiety disorder is granted. FINDINGS OF FACT 1. From August 15, 1972 through June 30, 1975, the Veteran’s anxiety disorder resulted in disability more nearly approximating serious impairment in the ability to establish and maintain effective or favorable relationships with people and pronounced impairment in the ability to obtain or retain employment. 2. From July 1, 1975 through June 28, 2006, the Veteran’s anxiety disorder resulted in no more than definite impairment in the ability to establish or maintain effective or wholesome relationships with people; reduction in initiative, flexibility, efficiency, and reliability levels as to produce considerable social impairment; and 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. 3. From June 29, 2006 through November 22, 2007, the Veteran’s anxiety disorder resulted in disability more nearly approximating serious or severe impairment in the ability to establish and maintain effective or favorable relationships with people; pronounced or severe impairment in the ability to retain employment; and occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. From August 15, 1972 through June 30, 1975, the criteria for a 70 percent rating for anxiety disorder have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.132 (1972). 2. From July 1, 1975 through June 28, 2006, the criteria for a rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.132 (prior to November 7, 1996), 4.130, Diagnostic Code 9400 (2020). 3. From June 29, 2006 through November 22, 2007, the criteria for a 70 percent rating for anxiety disorder have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.132 (prior to November 7, 1996), 4.130, Diagnostic Code 9400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1971, including service in the Republic of Vietnam, for which he received a Purple Heart and a Bronze Star. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in in October 2019, at which time the Board granted an effective date of August 15, 1972, for the award of service connection for anxiety disorder and remanded the claim for a higher rating for anxiety disorder for further development. In April 2020, the Board granted a rating of 70 percent for anxiety disorder beginning November 23, 2007; granted a total disability rating based on individual unemployability (TDIU) beginning June 1, 2008; and remanded the issue of entitlement to a rating in excess of 30 percent for anxiety disorder from August 15, 1972, through November 22, 2007 for issuance of a supplemental statement of the case (SSOC). An SSOC was issued in August 2020, and the case has been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a rating in excess of 30 percent for anxiety disorder from August 15, 1972, through November 22, 2007 The rating criteria for evaluating psychiatric disorders were amended twice during the period under review, once effective February 3, 1988, and again effective November 7, 1996. When a law or regulation changes during the pendency of a claim, the version most favorable to the claimant applies from the effective date of the change; however, the previous version of the regulation applies prior to the date of the change. See Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003); see also VAOPGCPREC 3-00 (Apr. 10, 2000), 65 Fed. Reg. 33422 (2000). Prior to February 3, 1988, psychiatric disorders were evaluated under the General Rating Formula for Psychoneurotic Disorders. Under that formula, a 30 percent rating was warranted for definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce considerable social impairment. 38 C.F.R. § 4.132 (prior to February 3, 1988). A 50 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people was substantially impaired, and, by reason of psychoneurotic symptoms, reliability, flexibility, and efficiency levels were so reduced as to result in severe industrial impairment. Id. A 70 percent rating was warranted when the ability to establish and maintain effective or favorable relationships with people was seriously impaired, and the psychoneurotic symptoms were of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. Id. A 100 percent rating was warranted when the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community; totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; and the Veteran was demonstrably unable to obtain or retain employment. Id. Effective February 3, 1988, the criteria for a 50 percent rating and a 70 percent rating were amended as follows: A 50 percent rating was warranted when the ability to establish or maintain effective or favorable relationships with people was considerably impaired, and, by reason of psychoneurotic symptoms, reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132 (effective February 3, 1988). A 70 percent rating was warranted when the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Id. Effective November 7, 1996, psychiatric disorders have been evaluated under the criteria set forth in the General Rating Formula for Rating Mental Disorders (General Rating Formula). Under the General Rating Formula, a 30 percent rating is assigned for 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent rating is assigned for 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 such as, 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. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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. Id. A 100 percent rating is assigned for 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9400 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s anxiety disorder and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA 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(b) (2020). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. August 15, 1972 through June 30, 1975 Upon review of the record, the Board finds that from August 15, 1972, through June 30, 1975, the criteria for a rating of 70 percent have been more nearly approximated. A June 1972 VA psychiatric treatment record shows that the Veteran endorsed symptoms of nervousness, anxiety, insomnia, hallucinations, delusions, depression, poor reality testing, claustrophobia, and suicidal ideations. Upon a mental examination, the Veteran was alert and oriented; his communication and memory were normal; and his mood was depressed. The assessment was schizophrenia, paranoid type, with mild depression. The record shows that the Veteran received private mental health treatment from 1972 through June 1976; however, records from that treatment are no longer available. During an October 1972 VA examination, the Veteran reported feeling so nervous that he became nauseate and vomited at times. He reported feeling frightened and insecure for no apparent reason, never going out at night, and sleeping with a knife under his pillow. The Veteran reported that after his discharge from service in June 1971, he collected unemployment benefits until January 1972, when he enrolled in college and studied business administration. The examiner indicated that the Veteran appeared anxious, but his production of thought was realistic; flow of ideas was adequate; and his answers to questions were coherent and relevant. The Veteran appeared neatly dressed with good hygiene, and his behavior was appropriate and cooperative. There was no disturbance of thought process or disorders of perception, and the Veteran’s memory, insight, and judgment were intact. The diagnosis was anxiety neurosis, which the examiner characterized as mild to moderate. In a May 1973 written statement, the Veteran indicated that he had been unable to work or study since January 1973 due to his nervous condition. A June 1975 VA treatment record shows that the Veteran reported feeling very anxious on the subway and afraid of people on the street while visiting his parents in New York City. It was noted that the Veteran was a college student living with aunt and uncle in Puerto Rico at the time, where he had been receiving mental health treatment for the past two years. He reported completing two years of college courses and getting along well with his aunt and uncle and parents, but reported feeling very anxious in a big, noisy city. He also reported drinking alcohol all day long, hearing auditory hallucinations, having an upset stomach, and not wanting to be around people. The Veteran appeared shaky, anxious, fearful, paranoid, and depressed. Later that month, the Veteran was admitted for inpatient mental health treatment. On the day of his admission, it was noted that the Veteran was very unmanageable, physically violent, and hostile. He was subsequently noted to be alert, oriented, and cooperative, and he showed some improvement. Three days later, the Veteran reported feeling anxious to return to Puerto Rico, and he was discharged against medical advice. At the time of his discharge, he was alert and well oriented, but he still appeared shaky, delusional, phobic, and paranoid. Based on the foregoing, the Board finds that prior to July 1, 1975, the Veteran’s overall disability picture more nearly approximated serious impairment in the ability to establish and maintain effective or favorable relationships with people, and symptoms of such severity and persistence that there was pronounced impairment in the ability to obtain or retain employment. Accordingly, the criteria for a rating of 70 percent were more nearly approximated. The Board finds that a rating in excess of 70 percent was not warranted at any time prior to July 1, 1975, as the record does not show that the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. During this period, the record shows that the Veteran had a good relationship with family members, attended college courses, and traveled between Puerto Rico and New York to visit family. Moreover, there was no evidence of totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior. Further, the record does not support a finding that the Veteran was demonstrably unable to obtain or retain employment, as he completed two years of college courses during this time period. Accordingly, the criteria for a 100 percent rating were not met at any time prior to July 1, 1975. July 1, 1975 through June 28, 2006 Upon review of the record, the Board finds that a rating in excess of 30 percent is not warranted at any time from July 1, 1975, through June 28, 2006. After the Veteran’s three-day hospitalization in June 1975, the record shows that he returned to Puerto Rico, where he completed his bachelor’s degree in 1976 and continued to receive outpatient mental health treatment for phobic symptoms until 1977. Later in 1977, the Veteran moved to New York, where he worked as a social worker for a private social services program and completed his master’s degree in child welfare at Fordham University. A December 1977 VA treatment record shows that the Veteran reported drinking alcohol occasionally; however, he did not report any mental health symptoms at that time. In January 1984, it was noted that the Veteran was married and still working as a social worker in New York. A February 1984 VA social worker treatment note shows that the Veteran reported being married for three years, having a two-year-old son, and working as a social worker for the past seven years. He reported a history of alcohol abuse and symptoms of anxiety in enclosed places, such as subway trains. He also reported increased anxiety over an anticipated move to Puerto Rico. The social worker noted that the Veteran appeared coherent, cooperative, and well oriented, and he exhibited no hallucinations of any sort, no evidence of depression, and no suicidal or homicidal ideations. The impression was alcohol dependence, under control at present, and rule out phobic disorder. A March 1984 VA mental health treatment record shows that the Veteran reported applying for a position as a social worker in Puerto Rico and having increased anxiety about leaving his current job and changing his living situation. He also reported a history of intermittent alcohol abuse. The treatment provider indicated that the Veteran appeared motivated for treatment and referred him to outpatient treatment for addictive disorders. Thereafter, the record shows that the Veteran moved between Puerto Rico and New York; he maintained employment as a psychotherapist and a social worker; and he did not receive any mental health treatment again until June 29, 2006. In summary, from July 1, 1975, through June 28, 2006, the Veteran got married and maintained a marital relationship with his wife; he completed his bachelor’s degree and a master’s degree; he was able to move his family between Puerto Rico and New York on a few occasions; and he maintained employment. Thus, the evidence of record does not show that the Veteran’s ability to establish or maintain effective or favorable relationships with people was substantially or considerably impaired or that his psychoneurotic symptoms resulted in reliability, flexibility, and efficiency levels that were so reduced as to result in severe or considerable industrial impairment. As such, the criteria for a rating in excess of 30 percent were not met under the old rating criteria at any time between July 1, 1975, and June 28, 2006. Additionally, the record does not show evidence of 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 such as, 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 during this period. Therefore, the criteria for a rating in excess of 30 percent were not met under the new rating criteria at any time between July 1, 1975 and June 28, 2006. June 29, 2006 through November 22, 2007 Beginning June 29, 2006, the Board finds that the criteria for a rating of 70 percent have been more nearly approximated. A June 29, 2006 VA mental health treatment record shows that the Veteran reported symptoms of increased anxiety and problems with his relationship with his 21-year-old daughter. He also reported a longstanding history of generalized anxiety disorder and alcohol abuse. The treatment provider indicated that the Veteran was clean, but poorly groomed, and he appeared depressed and anxious. His affect was appropriate; his memory was good; he was in full contact with reality; his speech was goal directed; and there were no perceptual abnormalities or suicidal or homicidal ideations. The Veteran’s abstract thinking and social judgment were good upon testing, but poor by history. The assessment was generalized anxiety disorder, alcohol abuse in very early remission, and substance use disorder in full remission. Subsequent VA mental health treatment records show that the Veteran reported symptoms of depression and daily episodes of severe anxiety with claustrophobia. He also reported drinking again on a daily basis. It was noted that the Veteran described problems due to his increased alcohol consumption, but he had no insight into his problem. The Veteran also reported feeling very irritable, anxious, and suspicious of others, which resulted in conflicts with school staff members and children’s parents, caused turmoil at work, and made his job as a school social worker very difficult. The Veteran’s treatment providers also recommended a change im his psychotropic medications on a few occasions between June 2006 and November 2007. Based on the foregoing, and after resolving reasonable doubt in favor of the Veteran, the Board finds that beginning June 29, 2006, the evidence of record more nearly approximates serious or severe impairment in the ability to establish and maintain effective or favorable relationships with people; pronounced or severe impairment in the ability to retain employment; and/or occupational and social impairment with deficiencies in most areas. The Board finds that a rating in excess of 70 percent is not warranted at any time from June 29, 2006 through November 22, 2007 under either the old or new rating criteria. During this time, the record shows that the Veteran maintained full-time employment, cared for his adult son with autism, and maintained a good relationship with his wife. The Veteran’s treatment providers noted that his thought process was coherent, relevant, and logical; his memory and judgment were intact; and his behavior was cooperative and appropriate. Thus, the record does not show that the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community or totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior. Furthermore, the record does not support a finding that the Veteran was demonstrably unable to obtain or retain employment or that there was total social occupational impairment. Accordingly, the criteria for a 100 percent rating were not met at any time from June 29, 2006 through November 22, 2007. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, 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.