Citation Nr: 21065380 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-02 139 DATE: October 26, 2021 ORDER Entitlement to an evaluation of 100 percent prior to February 5, 2020 for general anxiety disorder with panic, depressive, and obsessive compulsive features (general anxiety disorder) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 28, 2020 is dismissed as moot. FINDINGS OF FACT 1. Prior to February 5, 2020, after resolving reasonable doubt in his favor, the Veteran's general anxiety disorder manifested in symptoms more closely approximating total occupational and social impairment, with symptoms such as persistent hallucinations or delusions, severe anxiety attacks, and an inability to establish close interpersonal relationships. 2. The Veteran's only service-connected disability is his general anxiety disorder; as a result of the grant of benefits herein, that disability has a 100 percent evaluation during the appeal period currently before the Board. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 100 percent prior to February 5, 2020 for general anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9400 (2021). 2. The criteria for dismissal of entitlement to TDIU prior to January 28, 2020 have been met. 38 U.S.C. § 7104 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2010 to June 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA). This case was remanded in April 2014, August 2019, and April 2021 for further development; it has since been re-assigned to the undersigned. Since the Board's last remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU from January 28, 2020. See July 2021 rating decision. The issue has been recharacterized accordingly. 1. Entitlement to an evaluation in excess of 30 percent prior to November 5, 2014 and in excess of 70 percent from November 5, 2014 to February 5, 2020. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's general anxiety disorder is currently rated at 30 percent prior to November 5, 2014 and at 70 percent from November 5, 2014 to February 5, 2020 under the General Rating Formula for Mental Disorders (General Formula). A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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, Code 9400. As an initial matter, the Board is attributing all of the Veteran's mental health symptoms to his service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Although a June 2015 VA examiner initially opined it was possible to differentiate the symptoms that are attributable to the Veteran's various diagnoses, the examiner also later opined that she was unable to delineate which disorder was causing a specific impairment because symptoms of mental disorders were generally overlapping and caused impairment to functioning across domains. As a result, the Board finds it appropriate to consider all psychological symptoms noted in the record. The beginning of the appeal period for this matter begins immediately after the Veteran's discharge from service. Earlier in the month prior to his discharge, he was hospitalized for a suicide attempt. See June 2010 service treatment records (STRs). Later that year, he was noted to have obsessive thoughts and paranoid delusions; he was especially jealous around his significant other. He had partial judgment and obsessive compulsive traits, such as organizing his room repeatedly and washing his hands. See November 2010 private treatment records. A December 2010 VA examiner noted that the Veteran reported a history of an unstable mood that could moderately limit his social functioning. He reported nervousness, sleeping difficulty, and isolation. The examiner opined that the Veteran had mental disorder symptoms that manifested in deficiencies in mood, but there was not any reduced reliability and productivity. In January 2011, the Veteran's father reported that the Veteran could not do activities such as going out, cutting the grass, washing the car, and reading. He had difficulty talking and could not talk about coherent topics. He did not have the will power to cooperate because he felt that his life had no value or meaning. He did not have friends and was never in a good mood. He had trouble paying attention because he was always thinking about his military service. In March 2011, the Veteran's private treating psychiatrist opined that the Veteran did not have the mental capacity to work, have interpersonal relations, or obtain an education. In VA treatment records date the same month, he was noted to have psychotic features such as delusional ideation, as well as poor concentration, poor attention, inadequate hygiene, and anhedonia. In June 2011, he reported episodes suggestive of panic attacks, such as when he thought the roof could fall off and feared for his life. Although he was on medication, he most recently had auditory hallucinations about three weeks previously. See June 2011 VA treatment records. His treating psychiatrist reported that the Veteran could not work. See July 2011 private letter. In January 2012 VA treatment records, he reported that his auditory hallucinations worsened. In September 2014, he reported still hearing some voices intermittently. He was voluntarily hospitalized in November 2014 for symptoms of severe anxiety and reported thoughts of suicide. He reported that his head was about to explode. During a June 2015 VA examination, the examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran had obsessive compulsive symptoms, such as needing to count change about six times to check the numbers and make sure they are correct. The examiner reported only the symptoms of depressed mood and chronic sleep impairment, and opined that testing was suggestive of overreporting of symptomatology. In SSA documents, the Veteran's father reported that the Veteran could not concentrate on his job and that he felt very nervous. He had to tell the Veteran to take a bath. The Veteran never flushed the toilet and the bathroom was always dirty. The Veteran could not handle financial transactions. The SSA found that the Veteran was not disabled from September 7, 2013. See April 2016 SSA records. The Veteran reported lapses of extreme depression and anxiety with panic-like attacks. His instances of extreme low mood usually lasted a couple of days at a time and he would have intermittent passive suicidal thoughts without plan. See May 2017 VA treatment records. A few years later, testing suggested that he experienced significant thinking and concentration problems accompanied by prominent distress and ruminative worry. He was likely to be withdrawn and isolated, feeling estranged from others. As a result, there were probably few, if any, close interpersonal relationships because people like him tend to become anxious and threatened by such relationships. Social judgment was likely to be fairly poor. See June 2019 VA treatment records. A February 2020 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity and that his symptoms impacted his social and occupational functioning moderately. However, symptoms included near-continuous panic depression affecting the ability to function independently, appropriately and effectively; circumstantial, circumlocutory or stereotyped speech; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Later, in March 2020, VA treatment records reflect that the Veteran had some elements of agoraphobia, frequently experiencing paralyzing anxiety of leaving his familiar home environment. Throughout the entire appeal period, the Veteran has lived with his parents and appeared to have a good relationship with them. See, e.g., December 2010 VA examination. His educational history is inconsistent, but he has reported that he completed his bachelor's degree in 2012. See March 2020 VA treatment records. He appears to have held several jobs for short periods of time. He reported that he was fired from Wal-Mart after five to six months due to excessive absences. See June 2015 VA examination. The Veteran held a part time position from May 2016 to June 2019 as a pricing checker, see May 2021 VA Form 21-8940, but frequently reported problems with work. He reported that he invested significant time during his day to "calm himself down," which limited his performance at work. He was triggered by large crowds and noisy places. He hours were cut down to half days, which worried him because work was therapeutic. See January 2018 VA treatment records. He enjoyed being able to make his own schedule but described sometimes driving to a store where he was assigned and sitting, as if frozen, in his car for hours. See November 2018 VA treatment records. His difficulties with anxiety continued and his hours kept being lowered. He was at first full-time, then part-time. See May 2019 VA treatment records. His next employment was delivering packages for about seven months, but he quit due to excessive anxiety because panic attacks were interfering with his functioning. See February 2020 VA examination. The Veteran's mental health history reflects that his anxiety and obsessive compulsive traits are not constantly and totally present. However, when such symptoms are present, they are severe. Especially during the beginning of the appeal period, his symptoms included serious suicidal ideation and auditory hallucinations. His delusions were also severe enough to interfere with a relationship with a significant other. Later in the appeal period, his anxiety appears to have worsened and would paralyze him, preventing the Veteran from functioning during his work. Although he was clearly able to secure work, his history reflects a consistent inability to maintain his job, even if he believed working was in his best interests. Socially, it appears that the Veteran is unable to establish interpersonal relationships outside of his family and June 2019 VA treatment records reflect that his social judgment is likely to be fairly poor based on his test results. Although the VA examiners of record consistently opined that the Veteran's occupational and social impairment were less than total, when his extensive psychological history is reviewed it becomes clear that the Veteran has significant difficulties functioning on a long-term basis. He may be able to function in an occupational or social setting on any given day, however, eventually his symptoms would prevent him from maintaining such capabilities over a significant period of time. Thus, while the Veteran's occupational and social impairment is arguably not total, his symptoms more clearly approximate that criteria after resolving reasonable doubt in his favor. As a result, the Veteran meets the criteria for a 100 percent evaluation prior to February 5, 2020 for his general anxiety disorder and the claim is granted. 2. Entitlement to TDIU prior to January 28, 2010. In light of the fact that the Veteran's only service-connected disability is now rated at 100 percent due to the grant of benefits herein, there is no additional benefit from TDIU that can be obtained. See Bradley v. Peake, 22 Vet. App. 280 (2008). As a result, entitlement to TDIU prior to January 28, 2010 is dismissed as moot. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.