Citation Nr: 21066132 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-49 970 DATE: October 28, 2021 ORDER For the entire initial rating period on appeal, from January 12, 2016, a higher initial disability rating of 50 percent for service-connected generalized anxiety disorder is granted. FINDING OF FACT During the entire initial rating period on appeal, from January 12, 2016, the severity, frequency, and duration of the symptoms of the service connected generalized anxiety disorder more nearly approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, from January 12, 2016, the criteria for a higher initial disability rating of 50 percent for the service connected generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from December 1970 to August 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in May 2019, where the issue on appeal was remanded for a new VA mental health examination. The Veteran received an adequate VA mental health examination in February 2020. As such, the Board finds the issue on appeal ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2019 Remand, the Board found that the issue of a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) had not been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Board found that the Veteran had attributed his unemployability to non-service-connected disabilities. Per the report from the March 2016 VA mental health examination, the Veteran conveyed being unable to work due to non-service-connected breathing problems and petite mal seizures. On remand, at the February 2020 VA mental health examination, the Veteran once again reiterated that, while the service-connected mental health symptoms negatively impact the ability to work, he was actually forced to stop working due to the non service connected breathing problems. As such, the Board once again finds that the issue of entitlement to a TDIU has not been raised by the Veteran or the evidence of record. In the October 2016 notice of disagreement (NOD), the Veteran explicitly stated that an initial 50 percent disability rating was being sought for the service-connected generalized anxiety disorder. An appellant is presumed to be seeking the maximum possible benefit for the rating appealed. See A.B. v. Brown, 6 Vet. App. 35 (1993). In A.B., the United States Court of Appeals for Veterans Claims (Court) recognized that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability. Id. at 39. Again, in the instant matter the Veteran has explicitly stated that a 50 percent disability rating is being sought for the entire initial rating period on appeal. In the instant decision the Board grants the requested 50 percent rating for the entire initial rating period, from January 12, 2016. No subsequent statements by the Veteran indicate a desire to seek a disability rating in excess of 50 percent, and the evidence does not reflect that the Veteran's generalized anxiety disorder symptoms are of such severity, frequency, and/or duration to warrant or approximate a higher disability rating. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants a 50 percent disability rating for generalized anxiety disorder for the entire initial rating period on appeal, which, as discussed above, fully satisfies the appeal as to that issue, no further discussion of VA's duties to notify and assist is necessary. An Initial 50 Percent Disability Rating for Generalized Anxiety Disorder from January 12, 2016 is Granted 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran has appealed from the initial rating assigned for the service connected generalized anxiety disorder. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the Court addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Under Diagnostic Code 9400, a 30 percent rating will be assigned for a mental disability which is productive of 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, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated 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." It was further noted that "§ 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." See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). As discussed above, the Veteran seeks a higher initial disability rating of 50 percent for the entire initial rating period on appeal, from January 12, 2016. Having reviewed all the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, the severity, frequency, and duration of the symptoms of the service connected generalized anxiety disorder more nearly approximated occupational and social impairment with reduced reliability and productivity, to warrant an initial 50 percent disability rating. The Veteran received a VA mental health examination in March 2016. Upon examination the Veteran was noted to have symptoms of anxiety and chronic sleep impairment, which are both considered by the 30 percent rating criteria, and difficulty establishing and maintaining effective work and social relationships, which is contemplated by the 50 percent rating criteria. Further, the Veteran advanced having "excessive worries about safety and negative outcomes," which the Board finds to be like or similar to a disturbance of motivation and mood, as contemplated by the 50 percent rating criteria. In the October 2016 NOD, the Veteran conveyed having additional symptoms of stereotyped speech and difficulty understanding everyday normal talk (like or similar to difficulty in understanding complex commands). Further, the Veteran advanced having panic attacks at least once a week, which indicates that the panic attacks occurred more than once per week on average. Such symptoms and impairment are contemplated by the 50 percent rating criteria. Per the September 2017 substantive appeal, via VA Form 9, the Veteran conveyed being socially isolated (like or similar to difficulty establishing and maintaining effective work and social relationships), requiring work that limited social contact (like or similar to difficulty establishing and maintaining effective work and social relationships), and often forgot to finish various tasks (like or similar to impairment of short- and long-term memory). Such symptoms and impairments are contemplated by the 50 percent rating criteria. The Veteran received a new VA mental health examination in February 2020. Upon examination the Veteran reported symptoms of anxiety, chronic sleep impairment, and mild memory loss, which are contemplated by the 30 percent rating criteria, and difficulty establishing and maintaining effective work and social relationships, which is contemplated by the 50 percent rating criteria. The Veteran conveyed being nervous often. When considering the severity, frequency, and duration of this symptom, the Board finds it to be like or similar to a disturbance of motivation and mood, as contemplated by the 50 percent rating criteria. Review of the available VA treatment records reflect symptoms similar to those discussed above. In sum, the evidence of record reflects that the service-connected generalized anxiety disorder has primarily manifested as symptoms contemplated by the 30 percent and 50 percent VA rating criteria under the General Rating Formula for Mental Disorders. As such, when considering all the lay and medical evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire initial rating period on appeal, from January 12, 2016, the severity, frequency, and duration of the symptoms of the service connected generalized anxiety disorder more nearly approximated occupational and social impairment with reduced reliability and productivity. Such a finding warrants the grant of a higher initial disability rating of 50 percent for the service connected generalized anxiety disorder for the entire initial rating period on appeal, from January 12, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9400. The Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher disability rating in excess of 50 percent. See 38 C.F.R. § 19.55 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). The Board is granting a 50 percent initial disability rating for generalized anxiety disorder for the entire initial rating period on appeal, from January 12, 2016, which is a full grant of the benefit sought on appeal. For these reasons, any question of a higher initial disability rating in excess of 50 percent for the generalized anxiety disorder during the rating period on appeal is rendered moot, with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104 (2012); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, for the reasons discussed in the introduction, the Board does not find the question of entitlement to a TDIU to be raised or before it at this time. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.