Citation Nr: 21062351 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 03-29 436 DATE: October 7, 2021 ORDER Prior to March 2, 2017, and initial rating of 70 percent, but not higher, for panic disorder with agoraphobia is granted. FINDING OF FACT Throughout the period on appeal prior to March 2, 2017, the Veteran's service-connected panic disorder with agoraphobia has more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Prior to March 2, 2017, the criteria for an initial rating of 70 percent, but not higher, for panic disorder with agoraphobia have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9412 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied an initial rating in excess of 50 percent for panic disorder with agoraphobia prior to June 29, 2010; denied a rating in excess of 30 percent from June 29, 2010 through January 30, 2014; and denied a rating in excess of 50 percent from January 31, 2014, through March 1, 2017. The Veteran subsequently appealed that decision to the Court of Appeals for Veterans Claims (Court). In October 2019, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board's February 2019 decision and remanding it to the Board for readjudication. In a July 2020 decision, the Board again denied higher ratings for the Veteran's panic disorder with agoraphobia, and the Veteran appealed that decision to the Court. In May 2021, the Court granted another Joint Motion, vacating the Board's July 2020 decision and remanding it to the Board for readjudication. The Board notes that in July 2020, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 2, 2017, for referral to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis. In January 2021, the Director of Compensation Service denied an extraschedular TDIU rating prior to March 2, 2017. After a supplemental statement of the case (SSOC) was issued in March 2021, the Veteran opted to have that appeal processed under the modernized review system, also known as the Appeals Modernization Act (AMA). Therefore, the issue of entitlement to TDIU prior to March 2, 2017, will be addressed in a separate decision. 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). Under the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 30 percent rating is warranted when there is 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 9412. A 50 percent rating is warranted when there is 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 warranted when there is 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 maximum 100 percent rating is warranted when there is 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 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 the General Rating Formula is not restricted to the symptoms provided. Instead, VA must consider all symptoms associated with the Veteran's service-connected psychiatric 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. 1. Entitlement to a higher rating for panic disorder with agoraphobia prior to March 2, 2017 The Veteran's service-connected panic disorder with agoraphobia has been assigned an initial 50 percent rating from February 24, 2000 through June 28, 2010; a 30 percent rating from June 29, 2010, through January 30, 2014; a 50 percent rating from January 31, 2014, through March 1, 2017; and a 100 percent rating beginning March 2, 2017. The Veteran's attorney asserts that the Veteran is entitled to a rating of at least 70 percent, if not 100 percent, throughout the period on appeal. Upon review of the record, the Board finds that the criteria for a 70 percent rating for panic disorder with agoraphobia have been more nearly approximated throughout the period on appeal prior to March 2, 2017. A July 1999 VA mental health treatment record shows that the Veteran reported taking Ativan, which helped his psychiatric symptoms, but he continued to have anxiety and indicated that he had a "short fuse." The Veteran reported having an altercation with his employer that day and was unsure of whether he still had a job. He stated that this has happened several times before, and he has not held down a job for any great length of time. A May 2000 VA mental health treatment record shows that the Veteran reported working as a truck driver and was taking Xanax for panic attacks. It was noted that the Xanax controlled the Veteran's panic attacks to some extent, but he continued to have them, usually while he was driving. The treatment provider considered adding an antidepressant. In March 2005, the Veteran reported completing motorcycle school, but stated that he was unable to find work. He also reported drinking again because his medication was not controlling his panic symptoms. In May 2005, he reported finding a job fixing motorcycles. However, in February 2006, the Veteran reported quitting that job in December because he worked in an open area, and "people were looking at him." He stated that he was looking for work, but had difficulty tying going in to ask for a job and noted that he worried about dying all the time. In August 20006, the Veteran reported continued anxiety and panic attacks that came on unexpectedly, and he was constantly concerned about having another one. In February 2007, the Veteran reported working part-time repairing motorcycles. However, by August 2007, the Veteran's occupation was listed as unemployed motorcycle mechanic. Throughout 2008, it was noted that there was no change in the Veteran's employment status. The Veteran underwent a VA examination in September 2009, during which he reported panic episodes resulting in difficulty dealing with the public as well as problems eating. He stated that he mostly remained isolated in his home and ate his meals at home due to chronic difficulty with swallowing his food. He reported spending his time watching television and using his computer and denied any other hobbies or activities. His mood was anxious, and he appeared tense. The examiner indicated that the Veteran had daily panic attacks, which were severe in intensity and lasted about 20 to 30 minutes at a time, during which the Veteran was unable to function. As a result, the Veteran exhibited poor social functioning, poor judgment, and remained mostly at home. He reported a history of drinking about a gallon of liquor, five cases of beer, and four to five bottles of wine on a weekly basis until he stopped drinking in January 2009. The Veteran reported previously working as a truck driver, but stated that he had been unemployed for the past 10 to 20 years due to panic attacks, which could lead to loss of control while driving. The Veteran underwent another VA examination in June 2010, during which he reported daily panic attacks lasting about 20 to 30 minutes with sweating, shaking, shortness of breath, fear of dying, chest pain, worrying about future attacks, difficulty swallowing, pounding heart, and hyperventilation. He stated that he has generally been unable to identify triggers for his panic attacks, but they sometimes seemed to be triggered by eating in restaurants or driving long distances. He reported a history of self-medicating his symptoms with alcohol and stated that he drank while he worked as a truck driver because it was the only way he could drive without fear of having a panic attack. The Veteran indicated that he stopped working as a truck driver seven or eight years earlier when his employer started conducting random drug and alcohol tests. In September 2014, the Veteran submitted a report from a private psychologist who evaluated the Veteran and reviewed the evidence of record. The psychologist opined that the Veteran's panic disorder "has imposed severe limitations of functioning since 2002 and because of the severe limitations of functioning imposed by panic disorder, I believe the Veteran has been unable to maintain substantially gainful employment since 2002." The Veteran underwent another VA examination in March 2017, during which he reported difficulty functioning and being unable to leave his house unless his wife accompanied him. He also reported difficulty having any contact with people. He described anxiety episodes occurring at least twice a day, which did not always rise to the level of a full panic attack; however, he reported having panic attacks about once or twice a week, which were manifested by shortness of breath, increased heart rate, shaky hands, sweating, upset stomach, and feeling the need to get away and run, followed by feeling like he is dying. The examiner indicated that "the effect of the panic and agoraphobia on [the Veteran's] occupational and social functioning would be rendering him totally impaired as he has not been able to work since 2002 and even when he was working before that, he had 25 to 30 different jobs which he could not function at or fulfill because of his anxiety and panic." In summary, the record shows that the Veteran experienced frequent panic attacks and had a constant fear of having a panic attack, which affected his ability to leave his house, interact with others, and maintain employment for any significant period of time. The Bord finds that such symptoms are of a similar severity, frequency, and duration as near-continuous panic affecting the ability to function independently, appropriately, or effectively. Furthermore, the evidence of record shows that the Veteran's symptoms have caused difficulty in adapting to stressful circumstances, including work or a work-like setting. Based on the foregoing, the Board finds that the Veteran's overall disability picture more nearly approximates occupational and social impairment with deficiencies in most areas throughout the period under review. Accordingly, an initial rating of 70 percent is granted prior to March 2, 2017. The Board finds that a rating in excess of 70 percent is not warranted at any time prior to March 2, 2017. Although the March 2017 VA examiner indicated that the Veteran's panic and agoraphobia rendered him "totally impaired," an examiner's characterization of the level of disability is not binding on the Board. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination ... so that the current rating may accurately reflect the elements of disability present"). In this case, the record shows that the Veteran reported having good relationships with his wife, son, and other members of his family. During the June 2010 VA examination, he reported having a few friends and talking to some neighbors. Furthermore, the record shows no evidence of 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; or any other symptoms of a similar severity, frequency, and duration. Accordingly, the Board finds that total occupational and social impairment has not been shown. Therefore, a rating in excess of 70 percent is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning a rating in excess of that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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.