Citation Nr: 21063148 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 21-00 801 DATE: October 13, 2021 ORDER Entitlement to a rating greater than 30 percent for unspecified anxiety with depression, prior to June 15, 2017, greater than 50 percent between June 15, 2017 and March 18, 2019, and greater than 70 percent thereafter is denied. FINDINGS OF FACT 1. Prior to June 15, 2017, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. For the period between June 15, 2017 and March 18, 2019, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 3. After March 18, 2019, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to June 15, 2017, the criteria for a disability rating in excess of 30 percent for unspecified anxiety disorder with depression 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 (DC) 9413. 2. For the period between June 15, 2017 and March 18, 2019, the criteria for a disability rating in excess of 50 percent for unspecified anxiety disorder with depression 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, DC 9413. 3. After March 18, 2019, the criteria for a disability rating in excess of 70 percent for unspecified anxiety disorder with depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1956 to May 1956. In a May 2016 rating decision, service connection was granted and an initial 30 percent rating assigned for the psychiatric disability, effective February 11, 2014. The Veteran submitted a claim for increased rating within one year of that decision and pertinent evidence was received in connection with that claim. See 38 C.F.R. § 3.156 (b). During the course of the appeal, the rating was increased to 70 percent, effective March 18, 2019. See October 2020 rating decision. The issue before the Board is as noted on the title page. Entitlement to a rating greater than 30 percent prior to June 15, 2017, for unspecified anxiety with depression, greater than 50 percent between June 15, 2017 and March 18, 2019, and greater than 70 percent thereafter Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2007). Under the General Formula for Mental Disorders (General Formula), 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. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue before the Board is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating greater than 30 percent prior to the June 2015, greater than 50 percent between June 2015 and March 2019, and greater than 70 percent thereafter. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability greater than 30 percent prior to the June 2015, greater than 50 percent between June 2015 and March 2019, and greater than 70 percent thereafter. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or 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 normal conversation). 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 appearance and 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. VA treatment records show that the Veteran had an initial psychiatric evaluation in August 2014. During the evaluation, the Veteran reported difficulty in falling asleep with frequent night awakenings. The Veteran also endorsed panic attacks that occur roughly once a month. The Veteran also reported that he ids the last of his siblings to be living and complains of significant loneliness. Pt worked primarily as a plumber's assistant and retired 15 years ago. He currently lives in a house by himself. The provider reported the Veteran to have a depressed affect; logical thought process; no suicidal or homicidal ideations. The Veteran's judgment and insight was fair. He was alert and grossly oriented to all spheres. The provider noted that although the Veteran's memory not formally tested, it appeared to be grossly intact. On VA examination in May 2016, the examiner provided a comprehensive review of the Veteran's available VA treatment records. The examiner confirmed the Veteran's diagnosis of depression and anxiety disorder and characterized his psychiatric disorders 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 examiner identified the symptoms of depressed mood, anxiety and difficulty in establishing and maintaining effective work and social relationships contributing to the Veteran's condition. The Veteran reported to the examiner that he sleeps seven to eight hours per night and naps during the day. He denied significant difficulties with sleep. The Veteran did not endorse mania, psychosis, obsessions, or compulsions. He also denied impaired impulse control such as unprovoked irritability with periods of violence. He did endorse panic attacks during his late wife's cancer and death. The Veteran further reported to the examiner that he feels happy at times, especially when he sees his grandchildren. Although the Veteran maintains good relationships with his family, he has no interest in forming new relationships. The examiner opined that the Veteran's fear of crowds, irritability, and trouble with forming relationships would likely lead to mild impairment in work. However, was able to work through his career as a plumber. The Veteran reports no problems with activities of daily living (ADLs), such as feeding, grooming, bathing, walking, etc. The Veteran's daughter states that he is able to maintain his home. The Veteran is unable to manage his own finances, but this is due to being unable to write checks, etc. due to illiteracy issues. On VA examination in August 2017, the Veteran reported having anxiety attacks more than once per week. He also reported that he has no problems falling asleep. The Veteran denied suicidal ideation, obsessive or ritualistic behavior or any other inappropriate behavior. He also denied having delusions or hallucinations. The Veteran further reported having had 40 to 50 jobs in the past and often would be fired due to his inability to get along with others. The examiner characterized the Veteran's anxiety and depressive disorders as occupational and social impairment with reduced reliability and productivity. The symptoms identified by the examiner to support this characterization were depressed mood, anxiety, panic attacks more than once per week and disturbances of motivation and mood. The examiner reported that during the examination, the Veteran did not have impairment of thought process and his behavior was appropriate throughout the session. His mood and affect were in the normal range of function. The Veteran also has the ability to maintain minimal personal hygiene and other basic activities of daily living to include independently performing all ADL's. In March 2019, the Veteran submitted a private opinion and Disability Benefits Questionnaire (DBQ). The Veteran reported to the examiner that he engages in avoidance behaviors and endorsed a long-standing pattern of difficulty with anger management. He has chronic nervousness and hypervigilance when out in public. The Veteran reported having close to 50 jobs throughout his lifetime as a plumber. His anxiousness and uneasiness around other people led him to being quick to anger in interactions with foremen and co-workers and led him to being terminated or quitting before being terminated. He also reported having unexplained irritability and agitation since leaving service. The Veteran stated that he stays home all of the time. The Veteran also endorsed deficits in attention and concentration over long periods of time especially under periods of moderate to high stress. The examiner characterized the functional impairment related to the Veteran's psychiatric disorder as occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner identified the following symptoms associated with the Veteran's psychiatric disorder as depressed mood; anxiety; panic attacks that occur weekly or less often; near continuous depression affecting the ability to function independently, appropriately and effectively; mild memory loss such as forgetting names, directions and recent events; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships and impaired impulse control such as unprovoked irritability. The examiner noted that during the examination, the Veteran was dressed appropriately with hygiene and grooming within normal limits. His facial expressions reflected a severely dysphoric mood. The Veteran never manifested impulsiveness, distractibility or hyperactivity. He was focused and goal oriented and free of any evidence of a thought or perceptual disorder but manifested a moderate to severe dysphoric mood with an anxious and depressed affect. The examiner opined that the Veteran's psychiatric symptoms impaired his ability to create and sustain effective work relationships over the course of his life. While the Veteran maintained a good relationship with his family, he has never sustained any other type of long term effective interpersonal relationships. The Veteran has no desire to form and new relationships and stays home "all of the time" The examiner also noted that the Veteran maintains ADLs but does neglect his ADLs at times. The Board finds that prior to June 15, 2017, the severity, frequency, and duration of the Veteran's symptoms were less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The depression and anxiety manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. More specifically, the Veteran was able to function satisfactorily, with routine behavior, self-care, and normal conversation. The Veteran did endorse having suspiciousness, panic attacks (weekly or less often) and chronic sleep impairment. VA treatment records show that the Veteran's judgment and insight was fair. He was alert and grossly oriented to all spheres and his memory appeared to be grossly intact. The Veteran's psychological disorder manifested disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The May 2016 VA examination noted that the Veteran did not endorse mania, psychosis, obsessions, or compulsions. He also denied impaired impulse control such as unprovoked irritability with periods of violence. Although, he did endorse panic attacks during his late wife's cancer and death. The Veteran also endorsed a fear of crowds, irritability, and trouble with forming relationships that would likely lead to mild impairment in work. He was able to maintain his hygiene and ADLs. Although, prior to June 15, 2017, the Veteran's anxiety and depressive disorders manifested some criteria for a 50 percent rating; namely difficulty in establishing and maintaining effective work and social relationships and disturbances of motivation and mood, the evidence overall does not demonstrate the level of impairment associated with a 50 percent or greater rating. For example, the Veteran's affect was not flat; his speech was not circumstantial, circumlocutory, or stereotyped; The Veteran did not have 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 or impaired abstract thinking. For the period between June 15, 2017 to March 18, 2019, the Board also finds that the level of impairment caused by the Veteran's symptoms do not more closely approximate the level associated with a 70 percent rating. The August 2017 examiner characterized the related occupational and social impairment as reduced reliability and productivity. Symptoms identified by the examiner to support this characterization were depressed mood, anxiety, panic attacks more than once per week and disturbances of motivation and mood. The Veteran did not exhibit symptoms of a flattened affect; circumstantial, circumlocutory, or stereotyped speech; 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; or impaired abstract thinking. The Veteran did experience symptoms contemplated by a 50 percent rating of panic attacks more than once a week, impairment of short-and long-term memory, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. While the Board recognizes that the Veteran has manifested some criteria contemplated by a 70 percent rating, namely a history throughout the appeal period of having impaired impulse control (such as unprovoked irritability) and difficulty in adapting to stressful circumstances (including work or a worklike setting), the Veteran has not exhibited periods of violence. Thus, the evidence overall does not demonstrate the level of impairment associated with a 70 or greater percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. After March 18, 2019, the Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the effects contemplated by a 70 percent rating. The symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Veteran has not exhibited suicidal ideation, homicidal ideation or was a persistent danger of hurting self or others. The record includes reports of depression affecting his ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability without periods of violence); difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. The Veteran's other symptoms are contemplated by a 50 percent rating, such as, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Board finds that a rating in excess of 70 percent is not warranted. At no time during the period on appeal has the Veteran's anxiety and depressive disorder symptoms manifested the criteria for a 100 percent rating. There is no evidence that the Veteran's psychiatric disability results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. In summary, the preponderance of the evidence is against finding for a rating greater rating greater than 30 percent for unspecified anxiety with depression, prior to June 15, 2017, greater than 50 percent between June 15, 2017 and March 18, 2019, and greater than 70 percent thereafter. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.