Citation Nr: 21062517 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-37 940 DATE: October 7, 2021 ORDER Entitlement to a rating in excess of 50 percent for specified anxiety disorder and depressed mood with posttraumatic stress disorder (PTSD) for the period on appeal prior to May 11, 2015, is denied. Entitlement to a rating in excess of 70 percent for specified anxiety disorder and depressed mood with PTSD from May 11, 2015 to April 4, 2019, is denied. FINDINGS OF FACT 1. For the period on appeal prior to May 11, 2015, the Veteran's specified anxiety disorder and depressed mood with PTSD has not been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 2. From May 11, 2015 to April 4, 2019, the Veteran's specified anxiety disorder and depressed mood with PTSD has not been manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 50 percent for specified anxiety disorder and depressed mood with PTSD have not been met for the period on appeal prior to May 11, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2020). 2. The criteria for a rating greater than 70 percent for specified anxiety disorder and depressed mood with PTSD have not been met from May 11, 2015 to April 4, 2019. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to November 1970, with service in the Republic of Vietnam. His medals include the Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019, when it granted service connection for PTSD and remanded the claim for a higher rating for specified anxiety disorder with depressed mood for further development. A May 2019 rating decision, which effectuated the Board decision, granted service connection for PTSD, included PTSD with the evaluation for specified anxiety disorder and depressed mood, and assigned a higher rating for specified anxiety disorder and depressed mood with PTSD of 70 percent, effective May 11, 2015, and 100 percent, effective April 4, 2019. The Board notes that the assignment of a 100 percent rating from April 4, 2019 is a full grant of the benefits sought on appeal as of that date. The Board also notes that the issue of TDIU is no longer before the Board, as the Board's grant of TDIU was effectuated in the May 2019 rating decision, effective November 18, 2017 (the day following the Veteran's last date of employment), and is a full grant of the benefit sought on appeal with respect to the TDIU claim. INCREASED RATINGS Service connection for anxiety disorder (also claimed as PTSD) was established in a May 2006 rating decision and assigned a 30 percent rating. The Veteran submitted the present claim for an increased rating for anxiety disorder in January 2014. The August 2014 rating decision that is the subject of this appeal continued the 30 percent rating for unspecified anxiety disorder with depressed mood (previously shown as anxiety disorder). In August 2014, the Veteran submitted a claim for service connection for PTSD. An April 2015 rating decision denied service connection for PTSD and assigned an increased rating of 50 percent for unspecified anxiety disorder and depressed mood with subclinical symptoms of PTSD (previously shown as anxiety disorder), effective January 13, 2014, which the RO continued in July 2015 and May 2017 decisions. In March 2019, the Board granted service connection for PTSD and remanded the claim for a higher rating for specified anxiety disorder with depressed mood for further development. A May 2019 rating decision implemented the Board's grant of service connection for PTSD, effective August 27, 2014; included the now service-connected PTSD with the evaluation of the service-connected specified anxiety disorder with depressed mood, and assigned an increased rating for specified anxiety disorder and depressed mood with PTSD (previously shown as anxiety disorder) of 70 percent effective May 11, 2015, and 100 percent, effective April 4, 2019. 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. Under the General Rating Formula for Mental Disorders, a 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms, such 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, 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. A 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 behaviour; 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. Id. The symptoms listed in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. A veteran may only qualify for a given disability rating under 38 C.F.R. § 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 (Fed. Cir. 2013). Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 118. 1. Entitlement to a rating greater than 50 percent for specified anxiety disorder and depressed mood with PTSD for the period on appeal prior to May 11, 2015 After reviewing the record, the Board finds that the weight of the evidence is against assigning a rating greater than 50 percent at any point during the period on appeal prior to August 4, 2015, as the Veteran's symptoms during this period more closely approximate occupational and social impairment with reduced reliability and productivity. The weight of the evidence does not demonstrate symptoms that more nearly approximate occupational and social impairment with deficiencies in most areas. This decision is based on evidence of symptoms that include depressed mood, anxiety, panic attacks, chronic sleep impairment, irritability, avoidance, suspiciousness, mild memory loss, poor concentration, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The medical evidence during the appeal period prior to May 2015 includes May 2014 and November 2014 VA examinations; October 2014, December 2014 and February 2015 statements from a VA psychiatrist; and VA treatment records. The record also includes statements by the Veteran, his daughter, and VA employment officials. With respect to occupational history, for the claim period prior to May 2015, the record shows the Veteran effectively maintained full-time employment at the VA, remained motivated by employment and performed his work satisfactorily, despite conflicts with co-workers, reduced ability to complete tasks efficiently, and worsening anxiety that affected his ability to perform his job as well as in the past. See March 2014 and November 2014 VA examinations, and VA psychiatrist statements in October 2014 and February 2015. While the VA psychiatrist noted in October 2014 that the Veteran reported bursts of anger daily that come with little provocation, including at work, and that he has difficulty with concentration, she noted the Veteran continued to function adequately in his job and derives a sense of purpose from the job. The March 2014 VA examiner indicated the Veteran reported no written or verbal warnings in his current position, and while he is at times forgetful at work, he "likes what he is doing," does not miss time from work and participates in overtime work occasionally. The November 2014 VA examiner noted that the Veteran reported general symptoms of panic when engaged in work tasks and concerns with forgetfulness for which he received verbal warnings, but that his most recent work evaluation was generally favorable and he had not missed much work up to that point. In February 2015, the VA psychiatrist noted that for two years the Veteran has had marked difficulty at work, been desperate and tremulous, exhibited irritability, anxiety, and poor concentration, and that these symptoms persisted despite numerous medication trials and psychotherapeutic interventions. She indicated the Veteran is currently employed at the VA and felt very good about his functioning at work, but also felt overwhelmed with anxiety, unable to perform his job as he had in the past, and was taking extended leave for the second time in 6 months. A February 2015 letter from a VA human resource specialist verified that the Veteran recorded 164 hours of sick leave from February 2014 to January 2015 of which 102 hours were directly related to his PTSD, according to a December 2014 letter from his VA psychiatrist, and that the Veteran stated that 90 percent of the remaining 62 hours were related to mental health treatment. With respect to social functioning, the record shows that during this period the Veteran had strained and restricted relationships and reported that he tends to keep to himself and has a "hard time getting along with people." See March 2014 VA examination report. It also shows the Veteran maintained a relationship with his daughter, granddaughter and one friend; was able to perform activities of daily living, including household chores (e.g., laundry, cooking, cleaning) and self-care activities (e.g., dressing, showering) independently and regularly; and maintained stable housing throughout the period. Id. While the March 2014 VA examiner noted reduced recreational activities and the Veteran reported a loss of interest in activities he previously enjoyed, such as bowling and running (see March 2014 and November 2014 VA examinations and October 2014 VA psychiatrist statement), the November 2014 VA examiner and October 2014 VA psychiatrist indicated that the Veteran stopped bowling and running due to physical pain and limitations; they did not attribute it to his psychiatric disability. The March 2014 VA examiner and a VA provider in August 2013 indicated the Veteran reported he had recently gone skydiving with his daughter. The May 2014 and November 2014 VA examiners both indicated the Veteran is capable of managing his own financial affairs. The May 2014 VA examiner summarized the functional impairment due to the Veteran's psychiatric symptoms as 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; the November 2014 VA examiner indicated occupational and social impairment with reduced reliability and productivity. In October 2014, the VA psychiatrist noted the Veteran's anxiety symptoms have left him profoundly and occupationally impaired, while in February 2015, she noted marked social and occupational impairment. Both the March 2014 and November 2014 VA examiners noted the Veteran's functional impairments include reduced ability to complete tasks efficiently and accurately, regular conflicts with co-workers, verbal warnings, social restriction, strained relationships, and reduced recreational activities and that these functional impairments are impacted by depressed and anxious mood, feelings of hopelessness and worthlessness, ruminations, reduced sleep, and irritability. They also noted that the Veteran continues to maintain stable employment, is motivated by employment, does not miss time from work, maintains relationships with his daughters and one friend, maintains stable housing and continues to care for his home and himself independently. The medical evidence shows worsening symptoms of panic throughout this period, which the October 2014 VA psychiatrist described as near continuous or daily and the March 2014 and November 2014 VA examiners indicated occurs weekly or less often. During October 2014, November 2014, and April 2015 VA treatment, the VA psychiatrist noted the Veteran had lost nearly all relationships due to short fuse and depressed mood; and made mistakes and had disruptive episodes at work, which she described as severely occupationally and socially ruinous. Nonetheless, mental status examinations during VA treatment from January 2014 to May 2015 also show the Veteran was appropriately dressed and groomed; speech was clearly articulated, albeit mildly pressured; the Veteran was alert and fully oriented in all spheres; he answered questions logically and appropriately to the questions asked; thoughts were logical and goal-directed without psychosis, insight and judgement were good; memory and cognition were intact; psychomotor activity was normal; the Veteran participated meaningfully in discussion of treatment options; and there was no evidence of delusions, hallucinations, homicidal ideation, aggression, perseveration, anomia, disinhibition or confusion. See VA treatment in May 2013, August 2013, October 2013, April 2014, August 2014, October 2014, and February 2015. While the March 2014 VA examiner noted the Veteran reported irritability and anger, occasional physical violence directed at intimate objects like kicking a door and verbal fights, and occasional repetitive behaviors, such as checking the stove and kissing a picture of his dog, she also indicated the Veteran did not endorse physical violence towards other or obsessive behaviors, and the medical evidence does not otherwise show evidence of impaired impulse control or obsessional rituals that interfere with routine activities. See id. While the Veteran reported a history of suicidal ideation when his brother and dog passed away in 2012, as noted on the March 2014 VA examination report, he denied current suicidal or homicidal ideation at the time of the VA examination, and consistently denied suicidal ideation during VA treatment throughout this period. Thus, the Board finds that the evidence, when considered together, shows that the severity, frequency and duration of the Veteran's specified anxiety disorder and depressed mood with PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity throughout this period, rather than deficiencies in most areas. These symptoms are compensated adequately by the 50 percent rating for specified anxiety disorder and depressed mood with PTSD currently assigned for the period on appeal prior to May 11, 2015. Accordingly, the claim for a rating greater than 50 percent for the period on appeal prior to May 11, 2015, is denied. 2. Entitlement to a rating greater than 70 percent for specified anxiety disorder and depressed mood with PTSD from May 11, 2015 to April 4, 2019 After reviewing the record, the Board finds that the weight of the evidence is against assigning a rating greater than 70 percent at any point from May 11, 2015 to April 4, 2019, as the Veteran's symptoms during this period more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood. The weight of the evidence does not demonstrate symptoms that more nearly approximate total occupational and social impairment. This decision is based on evidence of symptoms that include depressed mood, anxiety, daily panic attacks, irritability, poor concentration, avoidance, anger issues, chronic sleep impairment, suicidal ideation, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The medical evidence during this period includes a February 2017 VA examination; May 2015, September 2016 and July 2017 statements from a VA psychiatrist; an October 2016 statement from a private clinician; a July 2017 statement from a VA psychologist; and VA treatment records. The record also includes statements from the Veteran and VA employment officials. In May 2015 and September 2016 statements, a VA psychiatrist noted the Veteran's psychiatric symptoms are severe and result in near complete social and occupational impairment. In an October 2016 statement, a private clinician stated that the Veteran's symptoms have severely impacted his social, occupational, and daily functioning and have made life very difficult in terms of handling and processing emotion, regulating his mood, and adapting to changes, specifically in the workplace. A February 2017 VA examiner opined that the Veteran's psychiatric symptomatology was in the general broad range of substantial/marked/severe impairment. She characterized the Veteran's psychiatric symptoms as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. With respect to occupational functioning, in May 2015 and September 2016, the VA psychiatrist noted the Veteran had increasingly marked difficulty at work, irritability and outbursts that made interactions with co-workers tenuous and ineffective; inability to tolerate work stress; daily panic attacks with every perceived mistake; intense anxiety and poor concentration; and unreliability and unpredictable emotional symptoms. In the September 2016 statement, the clinician further noted the Veteran has begun missing work, including 40 days that year due to symptoms of anxiety. The February 2017 VA examiner noted the Veteran was employed full-time at the time of the examination and opined that his symptoms impact his ability to work cooperatively with co-workers, supervisors and the public to a moderate/severe extent; that there is an extensive impairment in social relationships, primarily with co-workers, which results in chronic distress and at times maladaptive expressions of anger; and that these symptoms have resulted in complaints being filed, verbal warnings, interaction although rarely with VA police, and an issue of discussion with supervisors. However, the examiner also noted that this has not resulted in formal sanctions, reduction of job classification, formal probation, or other documented remedial steps prior to the termination of employment. The examiner noted the Veteran reported utilizing sick leave and vacation time to address mental health issues. She opined that it is more likely than not that the Veteran's symptoms interfere with attention, concentration, and memory, and as a result, impact the Veteran's ability to understand and follow instructions, retain instructions, communicate effectively, and solve technical or mechanical problems to a moderate extent. She opined that it is more likely than not that the Veteran's symptoms interfere with motivation and drive, and as a result, impact the Veteran's ability to maintain task persistence and pace, the ability to arrive to work on time, and the ability to work a regular schedule without excessive absences to a mild/moderate extent; however, she noted the Veteran maintains a very positive desire to work, is strongly motivated for work and to meet performance expectations and find ways, including mental health care, to learn ways to cope with anger/anxiety so that it does not further impair his work. An August 2017 letter from the Veteran's employment supervisor indicated that the Veteran was leaving his employment, effective November 17, 2017. He stated that he believed the Veteran's inability to continue performing the necessary duties of his job is due to his mental health and anger issues; he witnessed the Veteran's unpredictable outbursts and inability to concentrate in the tasks he is assigned, and several co-workers and others in the VA system have submitted formal reports to him regarding the Veteran's behavior. He opined that the Veteran cannot continue to maintain quality employment with the VA and likely will not be able to do so anywhere else. VA treatment from May 2015 to April 2019 notes marked difficulty at work, with irritability, inability to tolerate work stress, repeated, nearly-daily panic attacks with every perceived mistake, intense anxiety and poor concentration, and tenuous and ineffective interactions with co-workers due to irritability and outbursts. See VA treatment in May 2015, August 2016, February 2017, and August 2017. They also note marked difficulty at work, with irritability, inability to tolerate work stress, repeated, nearly-daily panic attacks, poor concentration, and symptoms so severe that the Veteran has lost nearly all relationships due to short fuse and depressed mood and have resulted in unreliability and unpredictable emotional symptoms. Id. With respect to social functioning, in May 2015 and September 2016, the VA psychiatrist stated that the Veteran has stopped all hobbies and seeing his buddies, become a recluse, and has only a fragmented, intermittent relationship with his daughter and granddaughter. In the September 2016 statement, she also indicated that the Veteran's anxiety has had ruinous effects on his relationships, noting the Veteran reported that all of his relationships have ended because of argument or physical altercation. The February 2017 VA examiner indicated avoidance of unwanted social contact, lack of motivation or satisfaction in interacting with others, issues with distrust and anger that, when expressed, often includes yelling/swearing and at times has escalated to physical threats and violence with negative effects. Thus, for the period on appeal prior to May 2015, the Board finds that weight of the evidence shows the frequency, severity, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas. These findings support the 70 percent rating currently assigned from May 2015 to April 2019. There is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for a rating greater than 70 percent. Notably, the evidence does not indicate 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, or memory loss for names of close relatives, own occupation or own name; and the February 2017 VA examiner specifically noted that the evidence did not reflect such impairment. The February 2017 VA examiner noted the Veteran was able to maintain the most basic of responsibility for his living situation and, at the time of the examination, maintained, despite gross impairment, full-time employment without formal sanctions, firing, or other formal remedial steps prior to potential firing; was not actively on probation; was without any extreme legal issues over the past few years (jail/prison/arrest etc.); was able to maintain this level of functioning without any residential care or psychiatric hospitalizations in order to maintain his current level of functioning; and providers had not expressed the opinion that the Veteran's mental health warranted concern or required treatment that could not be provided in an outpatient setting. The examiner indicated that, despite the functional impairment noted, taking into account the social and economic conditions of the time, the Veteran reported the following indicators of adequate functioning: continuous employment despite substantial occupational impairment as noted; efforts to advance one's self (medical/mental health care); absence of chronic abuse of alcohol/drugs; absence of the need for residential mental health care or psychiatric hospitalization; marginally satisfactory adjustment to co-workers and supervisors (maintains employment without formal remedial action plan); conformance to social standards of the environment; and absence of gross deficiencies in judgment and freedom from the need for supervision. He also indicated the Veteran was capable of managing his own financial affairs. While mental status examinations during VA treatment from May 2015 to April 2019 show the Veteran's mood was dysphoric, irritable, 'on-edge,' anxious and exhausted, they also consistently show the Veteran arrived on time for the appointment, was alert and oriented in all spheres, interactive and cooperative, appropriately dressed; memory and cognition were in tact; insight and judgment were good; impulse control was good; thoughts were logical and goal directed without psychosis; and there was no evidence of delusions or hallucinations, perseveration, anomia, disinhibition or confusion, or homicidal ideation or aggression. See, e.g., VA treatment in May 2015, December 2015, November 2016, February 2017, April 2017 and August 2017. While the Veteran's hygiene is noted as fair during December 2015 VA treatment, the record does not reflect an inability to perform activities of daily living (including maintenance of minimal personal hygiene). While fleeting passive suicidal ideation is noted in December 2015 VA treatment, the Veteran otherwise denied passive or active thoughts of death, self-harm, or suicide, including during the February 2017 VA examination and throughout VA treatment from 2015 to 2019. The February 2017 VA examiner noted the Veteran was able to follow basic instructions; communicate clearly, effectively and collaboratively; attend to and concentrate across a series of questions relevant to both proximal and distal experiences; and articulate his emotional and psychological experiences sufficiently to be able to fully participate in the clinical interview. Thus, the Board finds that from May 2015 to April 2019, the severity, frequency, and duration of the Veteran's psychiatric symptoms cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood, rather than total occupational and social impairment. These symptoms are compensated adequately by the 70 percent rating currently assigned from May 11, 2015 to April 4, 2019, for the Veteran's service-connected specified anxiety disorder and depressed mood with PTSD. See also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Thus, the claim for a rating greater than 70 percent from May 11, 2015 to April 4, 2019 for specified anxiety disorder and depressed mood with PTSD is denied. In reaching these decisions, the Board has reviewed and considered the Veteran's reported symptoms. While the Veteran and his daughter are competent to report observable symptoms, the Board finds that the medical evidence in this case, as discussed above, shows the specified anxiety disorder and depressed mood with PTSD symptoms cause greater occupational and social impairment, such that a rating higher than those currently assigned is warranted at any point during the appeal. The Board finds the medical evidence is more probative as to the level of impairment than the lay statements. The Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.