Citation Nr: 21003353 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-21 101 DATE: January 21, 2021 ORDER Entitlement to a disability evaluation in excess of 40 percent for service-connected lumbar strain is denied. Entitlement to a disability evaluation of 100 percent for service-connected major depressive disorder with panic disorder and agoraphobia with history of cocaine abuse is granted. FINDINGS OF FACT 1. The Veteran’s lumbar strain did not manifest by unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of 6 weeks during a period of 12 months. 2. The Veteran’s major depressive disorder with panic disorder and agoraphobia with history of cocaine abuse has manifested by symptoms of a severity, frequency, and duration to cause total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for initial disability evaluation in excess of 40 percent for service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242-5243. 2. The criteria for initial disability evaluation of 100 percent for major depressive disorder with panic disorder and agoraphobia with history of cocaine abuse have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to May 2006. This matter again comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Board previously remanded this matter in January 2019 and August 2020. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civilian occupations resulting from such diseases and injuries, and their residual conditions. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify various disabilities and the criteria for separate ratings. If two disability evaluations are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability evaluation in excess of 40 percent for service-connected lumbar strain is denied. The Veteran’s lumbar strain is rated in accordance with DCs 5242-5243. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Hence, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Accordingly, the Veteran’s disability has been rated as IVDS. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Under DC 5243, IVDS is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 (2014). 38 C.F.R. § 4.71a, Note (6). Under the Formula Rating IVDS set forth in DC 5243, a 10 percent rating is warranted if incapacitating episodes have a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain which does not rise to the level of functional loss if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Pursuant to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In order to receive a higher rating, the Veteran’s back disability must produce unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks over 12 months. As discussed below, the Board finds that her symptoms do not meet these criteria and therefore a higher rating is not warranted. When the Veteran was first examined regarding her lumbar spine condition in April 2007, she reported daily pain as a seven out of ten (7/10) with flare-ups occurring approximately twice per month lasting approximately 48 hours. She stated that he treated her flare-ups with increased medication, rest, ice, and heat and that she would experience some right leg radiculopathy. She told the examiner that during a flare-up, she would be unable to perform her normal daily functions, job skills, and household chores. She reported symptoms of limited motion, back pain, radiation of pain, leg pain, leg paresthesias, and leg numbness. The examiner found that the Veteran’s gait was slightly antalgic, though independent, and that she exhibited a slight stooped posture. When assessing abnormalities of the thoracolumbar spine, the examiner found that the Veteran exhibited bilateral muscle spasm, guarding, pain with motion, and tenderness. Specifically, the examiner found that the Veteran showed muscle spasm, localized tenderness, or guarding severe enough to be responsible for the Veteran’s abnormal gait. However, no muscle atrophy was noted. Although the examination report reflects that the Veteran had stooped posture, it also noted normal head position and symmetry in appearance. The examiner also found that lumbar flattening was present but that there was no evidence of spinal ankylosis. The Veteran did not exhibit abnormal sensation on examination. The Veteran’s initial forward flexion measured to 40 degrees and her combined range of motion measured to 150 degrees. After repetitive use testing, her forward flexion measured to 30 degrees and although no changes in lateral flexion or rotation range of motion were noted, repetitive use testing for extension of the back was not conducted due to the Veteran’s pain. Review of March 2007 thoracolumbar spine imaging revealed that the Veteran had slight narrowing in the L3-L4 and L4-L5 disc space and mild degenerative change. The examiner concluded that the Veteran’s lumbar strain caused mild effects on bathing, dressing, toileting, grooming, and driving; moderate effects on shopping, recreation, and traveling; severe effects on chores; and prevented the Veteran from participating in sports. During a July 2009 examination, the Veteran reported that she experienced pain in the lower back that was diffuse, deep, constant, and most of the time a seven out of ten (7/10). She noted that the pain radiated to both buttocks and lower extremities and that shed used medication to treat her pain. She also informed the examiner that she experienced flare-ups at least two to three (2-3) times per week, during which her pain would increase to a nine out of ten (9/10). She stated that she experienced no incapacitation or additional functional limitation. The precipitating factors to her pain were sitting for more than five to ten (5-10) minutes and standing for more than three to four (3-4) minutes. The Veteran also noted that her condition had slowed her down in completing her activities of daily living and impacted her occupation and ability to drive. The examiner found that she had a normal gait and normal curvature to the spine. However, the report reflects that the Veteran’s spine was tender to palpation and she started crying during the examination; even though she had no difficulty getting on the examination table, she required assistance getting off it. Her initial forward flexion measured to 90 degrees and combined range of motion measured to 240 degrees. She exhibited pain at all ranges of motion and after repetitive use testing, her forward flexion decreased to 60 degrees with no changes in her lateral flexion or lateral rotation ranges; however, range of motion of extension after repetitive use testing was not reported. After reviewing a CT of the lumbar spine, the examiner found small protrusion at L3-L4, L4-L5, and L5-S1 without significant spinal stenosis or neuroforaminal narrowing. No sensory, motor, or autonomic dysfunction or neurological deficit of the Veteran’s spine was found on examination. The Board also acknowledges that the Veteran is receiving Social Security Administration (SSA) disability benefits for her thoracolumbar spine condition. She was examined in February 2010 to determine the severity of her disability. The Veteran informed her examiner that her pain had worsened over the years and that after a recent workup, she was noted to now have four herniated discs and scoliosis. She told the examiner that her pain was constant, dull, and aching, and that she experienced radiating, intermittent, sharp pain down both legs. Her pain was to a point where she was unable to walk for one to two (1-2) weeks. The Veteran stated that she was able to sit for approximately five (5) minutes, stand for approximately five (5) minutes, and walk for 10 minutes. She reported being able to lift 10 pounds, push/pull 20 pounds, and that she had no difficulty using her hands. However, she informed the examiner that she had difficulty with bathing. Although she stated she can drive for short distances, her roommate would help with house chores that were too difficult such as vacuuming, mopping, sweeping, and washing dishes. On examination, the Veteran’s gait was steady but somewhat stiff and cautious. Her back had a normal curvature but had moderate to severe tenderness over the lumbar and sacral spine, specifically in the paraspinal muscles. Moderate to severe tenderness was also elicited bilaterally with straight leg lifts. Her forward flexion measured to 60 degrees and her combined range of motion measured to 120 degrees. The examiner found that her functional limitations included difficulty standing and walking for long periods of time; lifting; squatting; bending; and mild difficulty with dressing and bathing. Again, no ankylosis was noted and the Veteran was not found in her records to have incapacitating episodes as defined in 38 C.F.R. § 4.71a. The Veteran was again examined by VA in October 2019, at which time she reported that prolonged standing and walking cause back pain. Initially, her forward flexion measured to 60 degrees and her combined range of motion measured to 185 degrees. After repetitive use testing, no additional change to the Veteran’s range of motion was noted. Even though the examiner found that the Veteran exhibited pain on all ranges of motion, the examiner concluded that her pain did not result in or cause functional loss. She showed no pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint and associated tissue of the thoracolumbar spine was not noted. When describing the Veteran’s reported flare-ups, the examiner found that pain and fatigue significantly limit her functional ability. Nevertheless, it was estimated that flare-ups do not further affect her range of motion. She was found to have guarding and muscle spasm that did not result in an abnormal gait or spinal contour and to have normal muscle strength with no muscle atrophy. During her October 2019 examination, the Veteran was found to have normal reflexes and only decreased sensation in the right lower leg/ankle and foot/toes regions. Otherwise, her sensory examination was normal. Further, she was not found to have any ankylosis of the thoracolumbar spine and even though she was acknowledged to have IVDS, the examiner noted that she had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the previous 12 months. Additionally, even though the Veteran reported regular use of a back brace as an assistive device; the examiner found that her condition does not impact her ability to work. Here, the Board finds that the Veteran’s lumbar strain is properly evaluated as 40 percent disabling pursuant to the General Rating Formula. Although the Veteran had reported incapacitating episodes, such as an inability to get out of bed, her condition has not been noted to cause any incapacitating episodes under the regulatory definition (requires bed rest prescribed by a physician and treatment by a physician). The Veteran’s various medical records affiliated with the claims file do not reflect that she was prescribed bed rest by her physician. Accordingly, the Board finds that the General Rating Formula results in the higher evaluation for the Veteran’s lumbar strain and will therefore apply the General Rating Formula to her condition. Under the General Rating Formula, an evaluation of higher than 40 percent is warranted only when there is unfavorable ankylosis of the entire thoracolumbar spine. During none of the Veteran’s various examinations was unfavorable ankylosis noted. Even though examiners found a stiff, abnormal gait, stiffness and an abnormal gait are not ankylosis. Unfavorable ankylosis is defined as a condition in which the entire thoracolumbar spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, Note (5). The Veteran did not report any of the above-mentioned symptoms and her early examination reports reflect that her spine did not result in a fixed position in either extension or flexion. Therefore, a disability evaluation in excess of 40 percent for the Veteran’s condition is not warranted. The Board notes that the Veteran, in her VA and private medical records and during her numerous examinations, has complained of increasing back pain. However, the examination reports continuously reflect painful limited range of motion of the thoracolumbar spine. Accordingly, the criteria in DeLuca and Mitchell regarding painful motion are encompassed in the Veteran’s current 40 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207-08; Mitchell, 25 Vet. App. at 43. Throughout the period on appeal, there is no indication that the Veteran’s painful motion results in functional limitations of unfavorably ankylosed spine or bed rest prescribed by a physician for six (6) weeks. The Board finds that a preponderance of the medical evidence establishes that the Veteran has not experienced incapacitating episodes of IVDS or unfavorable ankylosis of the thoracolumbar spine. Therefore, entitlement to a disability evaluation in excess of 40 percent for the Veteran’s service-connected lumbar strain is denied. The Board has considered the benefit-of-the-doubt doctrine’s applicability to this matter; however, the preponderance of the evidence weighs against the Veteran’s claim, the benefit-of-the-doubt rule does not apply, and therefore entitlement to a higher disability evaluation is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 2. Entitlement to an initial disability evaluation of 100 percent for service-connected major depressive disorder with panic disorder and agoraphobia with history of cocaine abuse is granted. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 20, 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 that are linked to specific disability percentages. Then, the Board must determine whether the associated symptoms both listed and unlisted cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-18 (Fed. Cir. 2013). Accordingly, there are two elements that must be met to assign a particular rating under the General Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to the given rating; and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. Under the General Formula, mental disorders are evaluated as follows: • A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. • A 10 percent rating is assigned when 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 cause occupational and social impairment. • A 30 percent rating is assigned when symptoms such as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, 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 conversation normal. • 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. The Veteran was initially evaluated for her psychiatric condition in April 2007, at which time she noted that she was still married but separated from her husband. She informed the examiner that she had a girlfriend who was incarcerated but that they had a good supportive relationship. She also reported that she was staying with a friend due to homelessness and that she was in a stressful living situation. The Veteran did not engage in hobbies, was not working, and did not socialize with friends. The Veteran was found to have exhibited the following symptoms for rating purposes: depression daily; crying; irritability; constantly eating comfort food; inability to focus; hopelessness; sleep disturbances manifested by not staying asleep, waking up in the night, and experiencing racing thoughts that keep her awake; worrying/nervousness; avoidance symptoms; fear of feeling; numbing; detachment; and sense of foreshortened future. On examination, the Veteran was noted to be casually dressed but lethargic and fatigued. Her speech was unremarkable, and she had a cooperative and friendly attitude towards the examiner. Nevertheless, she exhibited a flat affect and expansive, depressed mood. She was oriented to person, time, and place, and her thought process was unremarkable, but was noted to have obsessive or ritualistic behavior. Specifically, she was noted to pull her eye lashes and hair when stressed daily, and it causes pain throughout the day. She would also dig at her hair for hours. She further reported a history of self-harm and self-mutilation by poking herself with needles; she said that she looked for blood. Additionally, the examiner noted panic attacks occurring approximate two to three (2-3) times per week, during which she would “black-out” and experience a racing heart, chest tightness, dizziness, and sweating. The examiner found that the Veteran had poor impulse control, as exhibited by her hair pulling tendencies. Further, the Veteran was observed to have no ability to maintain minimum personal hygiene, as she had periods where she would not shower or dress daily. Her recent memory was found to be mildly impaired, but her remote and immediate memory were normal. Her psychiatric condition was noted to cause slight problems with household chores, toileting and shopping; moderate problems with grooming and bathing; and severe problems with other recreational activities. After examining the Veteran and reviewing her claims file, the examiner concluded that the Veteran’s psychiatric condition caused total occupational and social impairment. Specifically, the examiner found that there was some question about whether she could maintain work due to her symptoms’ severity. She was not getting dressed or caring for herself well, was homeless, had panic attacks frequently, impulse control problems, sleep problems, and depression daily. Further, she had few social supports and participated in few activities and felt the need to isolate to feel safe. The Board acknowledges that the Veteran receives SSA disability benefits for her psychiatric condition. She was evaluated in both June 2009 and December 2009. During the June 2009 evaluation, the Veteran stated that she was separated in her marriage and was a high school graduate. She endorsed experiencing anxiety, depression, and trichotillomania. She stated that she has trouble taking orders from people. She informed the examiner that she had difficulty if people were behind her and she was hypervigilant about her safety, including to the point where she needs to sit with her back to the wall and by the door. She also reported thinking she saw faces in trees and fearing the dark. The Veteran further noted that she experienced episodes where she felt like she could not breathe and if she did not exit the situation, she felt anxious and she might black out with a panic attack. There were even some points of panic attacks where she blacked out and had knocked a hole in the wall, but experienced no memory of doing so. She endorsed the following symptoms to the examiners: crying spells; changes in personality; fear of losing control; difficulty falling asleep; nightmares; daytime sleepiness; heart racing; rapid breathing; perspiring when anxious; difficulties with memory and episodes of getting lost; problems with organization and meeting deadlines; racing thoughts; unusual thoughts; mental rituals; unusual feelings or familiarity for people, place, and time; disorientation; not outwardly showing emotions if she can help it; clinginess and dependence on others; and extreme reaction to changes in her environment. The examiner noted that the Veteran had not worked since her discharge from the military and that she was able to execute activities of daily living, but that she was unable to cook a whole meal and she had a hard time staying focused on any one thing. The Veteran informed the examiner that her bills were paid automatically online, but if she had pocket money, she would spend it once she got it. On examination, the Veteran appeared anxious when walking from the examiner’s office and when the examiner was behind her, she scooted to the far side of the hall and made sure the examiner was in her vision. Her speech was clear and articulate, and she had a happy but quiet mood. However, the examiner found the Veteran to have a flat affect and delusional thought content. Specifically, the Veteran reported that she felt like an umpire on a televised baseball game shot her a bird. Her memory was intact, but it was a struggle for her to come into a new situation because of her anxiety and trust issues. The June 2009 examiner concluded that the Veteran had a guarded prognosis of her psychiatric condition due to the ongoing nature of her symptoms. When the Veteran saw this examiner again in December 2009, she stated that whenever she was in a crowd, her heart began to race, and objects would seem farther away from her than they were. She reported hair plucking, the same as to the April 2007 examiner. The Veteran endorsed the following symptoms: anxiety; depression; irritability; frustration; panic and crying spells; fear of losing control; fluctuations in appetite; difficulty falling asleep; nightmares; daytime sleepiness; compulsive eating, cleaning, and nail biting; rapid heart rate and breathing; excessive perspiring; difficulty concentrating; difficulty being organized and meeting deadlines; poor memory including having a poor sense of direction and episodes of getting lost; disorientation at times; having strange ideas; experiencing emotions inappropriate to the situation; and little or no interest in peers. She told the examiner that most of the time she was able to execute her activities of daily living but that she tended to lie around the house and watch television and a friend of hers would do the cleaning and vacuuming. If she visited with someone and more people came over, she left the situation due to discomfort. The Veteran emphasized that she could not get along with people and was afraid that she would “start swinging” so she made sure that she was never around many people and would isolate herself when it happens. She also acknowledged that she was not a good money manager, noting that if she has money, she will spend it. On examination, the Veteran was noted to be casually and appropriately attired but nervous and jumpy throughout the interview. Although her speech was clear, she reported that her mood was often unhappy, and her observable affect was sad. She was oriented to person, place, time, and situation. Her memory was shown to be grossly intact and her thought content was noted to be free of delusions. Nevertheless, the examiner concluded that the Veteran’s prognosis was “quite poor” given her multitude of psychiatric diagnoses and symptoms. The Veteran was also examined by VA in July 2009, at which time she stated she had “no drive whatsoever” and that she could not “do anything that [she] used to enjoy.” She informed her examiner that she could not work due to her back pain and this resulted in her feeling depressed. She was tearful, noting that she would stay home most of the time, not socialize, and worried about her future. She reported experiencing anxiety, intrusive thoughts, and nightmares in addition to having panic attacks when in large groups of people and using tweezers to pull out her pubic hair on a nightly basis. On examination, the Veteran was clean and casually dressed. No remarkable psychomotor activity was noted. However, her mood was anxious and depressed with appropriate affect. The examiner found the Veteran’s memory to be normal and thought process and content to be unremarkable. After examining the Veteran and reviewing her file, the examiner concluded that the Veteran’s psychiatric condition resulted in an occupational and social impairment with deficiencies in most areas, including judgment, thinking, family relations, work, school or mood. During her examination in December 2019, the Veteran reported that she rarely leaves her home unless pressured, although she lived in a home with her partner and partner’s children and would regularly attend church and NA meetings. The examiner found that the Veteran exhibited the following symptoms for rating purposes: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; and neglect of personal appearance and hygiene. After examining the Veteran and reviewing her claims file, the examiner found that her psychiatric condition caused an occupational and social impairment with deficiencies in most areas, including work, school, family relations, judgment, thinking, and/or mood. Here, the Board finds that an initial, 100 percent disability evaluation is warranted for the Veteran’s service-connected psychiatric disability. The Veteran’s symptoms, including impaired impulse control, self-harm, and panic attacks were severe to the point where the Veteran could not work or even be near other people. Further, the April 2007 examiner found that the Veteran’s condition caused total occupational and social impairment. The VA treatment records affiliated with the claims file also reflect consistent psychiatric treatment visits. The June and December 2009 examiner also found the Veteran to have a guarded to low prognosis, showing little sign of improvement. The Board notes that the Veteran was not evaluated to have total occupational and social impairment at the July 2009 VA examination; however, the April 2007, June 2009, and December 2009 examinations all address that the Veteran’s condition extremely limits her occupational and social abilities, finding that her symptoms result in a very severe occupational and social impairment. (Continued on the next page) Accordingly, the Veteran is entitled to an initial disability evaluation of 100 percent for her service-connected major depressive disorder with panic disorder and agoraphobia with history of cocaine abuse. There is an approximate balance between the Veteran’s symptoms and occupational and social impairment for a 70 percent evaluation and a 100 percent evaluation. Thus, a 100 percent evaluation is assigned. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Seserman 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.