Citation Nr: 21061660 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-46 750 DATE: October 4, 2021 ORDER Entitlement to an initial rating for generalized anxiety disorder in excess of 50 percent is denied. FINDING OF FACT Generalized anxiety disorder is manifested in symptoms such as chronic sleep impairment; irritability; panic attacks more than once a week; and daily anxiety; all resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for generalized anxiety disorder have not 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 Veteran served on active duty from May 1981 to June 1984. The Veteran appeared at a Board hearing in July 2018; a transcript is of record. During the Board hearing, the undersigned Veterans Law Judge clarified the issues on appeal, identified potential evidentiary defects, and clarified the type of evidence that would support the Veteran's claim. The actions of the Veterans Law Judge supplement the Veterans Claims Assistance Act (VCAA) and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. The claim currently before the Board was remanded in January 2019. In June 2020, the Agency of Original Jurisdiction (AOJ) increased the Veteran's initial rating for her generalized anxiety disorder to 50 percent. A Supplemental Statement of Case (SSOC) was also sent to the Veteran. The issue of entitlement to service connection for a heart disability was granted while on Remand status. Subsequent to the AOJ's June 2020 SSOC, a statement in support of claim was received in July 2020. The statement requested a withdrawal of the current claims; however, the statement was not signed or written by either the Veteran's representative, The American Legion, or the Veteran herself. Therefore, the Board will make a decision based on the merits. 1. Entitlement to an initial rating for generalized anxiety disorder in excess of 50 percent Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that 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 a veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's generalized anxiety disorder is rated under diagnostic code 9400. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). While the Veteran's representative argued for a 50 percent rating during her Board hearing, the question for the Board is whether the Veteran's disability meets or more nearly approximates the criteria for a higher rating. The criteria for a 50 percent rating are as follows: 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. The criteria for a 70 percent rating are as follows: 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 work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). The DSM-5 applies in this case. As a result, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran's PTSD. Golden v. Shulkin, 29 Vet. App. 221 (2018). At an April 2013 VA examination, the Veteran was reported to have "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." Veteran reported a good relationship with her mother and also was her mother's primary caregiver. The Veteran reported depressed mood, daily anxiety, chronic sleep impairment but denied current suicidal/homicidal ideation, intent or plan. At an October 2019 VA examination, the Veteran was reported to have "occupational and social impairment with reduced reliability and productivity." The Veteran reported anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, but did not report suicidal/homicidal ideation. In May 2019, the Veteran submitted a January 2016 record that was requested on remand. The January 2016 medical record from Dr. D.S. noted anxiety, agitation/anger/irritability, restlessness, sleep disturbance, and depressed mood. Suicidal/ homicidal ideation was not reported. The Board has reviewed VA treatment records. The reported symptoms and manifestations are consistent with the VA and private examinations. In addition, the Board has reviewed the Veteran's hearing testimony. After a review of the medical and lay evidence of record, an initial evaluation of 50 percent remains warranted. The record indicates that the Veteran's service-connected psychiatric disorder manifested in a variety of symptoms during the period. However, after a thorough review of the record, the Board is convinced that the manifestations most closely approximate occupational and social impairment with reduced reliability and productivity. Most notable during this period are the Veteran's symptoms of irritability, disturbances of motivation and mood, chronic sleep impairment, and daily anxiety. An evaluation in excess of 50 percent is not warranted during this initial period. The weight of the evidence shows that the Veteran's symptomatology has more nearly approximated occupational and social impairment associated with a 50 percent disability rating. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400. The record indicates that the Veteran was capable of maintaining social relationships during this period, given her relationship with her mother, and some friends. While there is some apparent social impairment, it does not amount an inability of establishing and maintaining effective relationships. There is no evidence that the Veteran's irritability has resulted in violence. There is similarly no evidence of symptoms such as suicidal ideation, obsessional rituals, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, spatial disorientation, or neglect of personal appearance and hygiene. Furthermore, the objective medical conclusions of the VA examiners with respect to the severity of the Veteran's occupational and social impairment, while not determinative, is not consistent with occupational and social impairment with deficiencies in most areas. Thus, the Board finds that the Veteran does not have occupational and social impairment, with deficiencies in most areas during this initial period. She does have some deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that she does not meet the requirements for an evaluation greater than the now assigned 50 percent schedular rating. The Board concludes that her overall level of disability does not exceed the criteria for a 50 percent rating. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, Associate 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.