Citation Nr: 21005238 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 20-29 764 DATE: January 29, 2021 ORDER An increased initial rating of 50 percent for generalized anxiety disorder and specific phobia (anxiety disorder) is granted. VETERAN’S CONTENTIONS The Veteran contends that he is entitled to an increased rating in excess of 30 percent for his anxiety disorder. See March 2019 Notice of Disagreement. In support of his argument asserting entitlement to a rating in excess of 30 percent, the Veteran reported having some anger problems and crying spells. See October 2018 VA Examination. FINDINGS OF FACT 1. The Veteran’s anxiety disorder is productive of deficiencies in the areas of judgment, thinking, and mood. 2. The Veteran described himself as being angry and argumentative. See October 2018 VA Examination. The Veteran also described himself as often irritated with his family. See January 2016 VA Examination. The Veteran explained that when his wife tells him what to do, he is polite, but inside he seethes. Id. The October 2018 VA examiner found that the Veteran had no history of violence. Additionally, the Veteran’s fear of flying has affected his ability to fly with his family. See January 2016 VA Examination. 3. The Veteran endorsed suicidal ideations a few months prior to the October 2018 examination. See October 2018 VA Examination. The Veteran also stated he has difficulty thinking for himself and often second guessed himself. See January 2016 VA Examination. The Veteran also reported sleep impairment due to a nervousness feeling. See February 2016 VA Examination. A February 2020 VA examiner found that has intrusive thoughts about missions a few times a month. See January 2020 VA Treatment Record. 4. The October 2018 VA examiner found that the Veteran’s nervousness symptoms manifested into crying spells once a month. See October 2018 VA Examination. The Veteran also reported that his nerves have caused a chest rash. See August 2016 VA Treatment Record. The Veteran also described being worried about everything. See January 2016 VA Examination. The Veteran’s anxiety sometimes manifests itself into shortness of breath. Id. 5. The January 2016 VA examiner reported that the Veteran’s psychiatric disorder’s symptoms were an anxious mood; full and congruent affect; worrying; fear of flying; and difficulty making decisions for himself. See January 2016 VA Examination. The January 2016 examiner found that the Veteran was experiencing moderate levels of depression. Id. The January 2016 VA examiner found that the Veteran’s obsessive-compulsive subscale score was elevated due to his responses about having difficulty concentrating, making decisions, remembering things, and having to check what he does. Id. 6. The October 2020 VA examiner reported that the Veteran’s anxiety disorder symptoms were crying spells associated with nervousness; memories from service; anxiety; fear and avoidance of flying; and irritability. CONCLUSION OF LAW The criteria for an increased rating of 50 percent for the Veteran’s anxiety disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to July 1965. This matter comes before the Board of Veteran’s Appeal (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An increased initial rating of 50 percent for generalized anxiety disorder and specific phobia (anxiety disorder) is granted Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). By way of history, the Veteran’s anxiety disorder is rated as 30 percent disabling under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9400. The relevant rating criteria are set forth below. Under the general rating formula for mental disorders, 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, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Here, the October 2018 examiner concluded that the Veteran’s anxiety disorder was productive of occupational and social impairment with occasional decrease in work efficiency, but that determination is not binding on the Board. As previously detailed in the Findings of Fact section, the Veteran’s anxiety disorder has caused him to get angry often, caused crying spells associated with nervousness, inability to think for himself, fear of flying, and his anxious and worried mood. See October 2018 VA Examination. When evaluating the medical evidence of record coupled with the Veteran’s lay statements, the Board finds that the record demonstrates that the Veteran’s anxiety disorder is more severe than as determined by the VA examiner, as it impairs his mood, his thinking, and his judgment. Therefore, the Board finds that a 50 percent rating is warranted. Although the Board finds that a 50 percent rating is warranted, it also finds that the next-higher rating of 70 percent is not warranted. In support of this determination, the Board finds that the Veteran’s anxiety disorder is not productive of social and occupational impairment in most areas as contemplated by the criteria for a 70 percent rating. Here, the Veteran continued to state that he had a good relationship with his family. See VA Examinations dated January 2016 and October 2018. Further, although the Veteran reported tearing up before he had to go to work, he remained gainfully employed until retirement. Id. The Veteran also denied any history of occupational problems in terms of work relationships, tardiness, missed days, productivity, or efficiency. See October 2018 VA Examination. Although the Veteran is not in school, because the Veteran experiences no impairment in his capacity to work, the Board finds by analogy that the Veteran would also not experience impairment in the area of school, were he to attend school. The Veteran also explained that he was very active in church and stated that he would see his friends. Id. As the Veteran experiences impairment in only half of the areas contemplated by the regulation, it cannot find that his condition is productive of impairment in most areas, in line with an even higher 70 percent rating. Also supportive of this conclusion is that the record is devoid of evidence of impaired impulse control, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or an inability to establish and maintain effective relationships. Such symptoms or those analogous to those symptoms are necessary for the assignment of the next-higher rating under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130; see Mauerhan v. Principi, 16 Vet. App. 436 (2002). Based on the foregoing, the Board finds that the severity of the Veteran’s anxiety disorder symptoms warrants a 50 percent evaluation, but no higher. See 38 C.F.R. § 4.7. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.Foster 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.