Citation Nr: 21066430 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-27 522 DATE: November 1, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, for unspecified anxiety disorder is granted. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; they did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for unspecified anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1986 to July 1992. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Action Badge, the Southwest Asia Service Medal, and the Kuwait Liberation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans law Judge in May 2019. A transcript of the proceeding is of record. In October 2019, the Board denied a rating greater than 50 percent for unspecified anxiety disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's denial and remanded the matter to the Board to address whether the Veteran's suicidal ideation symptomatology met a higher rating criteria. Entitlement to a rating of 70 percent, but no higher, for unspecified anxiety disorder The Veteran contends he is entitled to a rating greater than 50 percent based on the presence of suicidal ideation throughout the appeal period. A June 2014 rating decision granted service connection for unspecified anxiety disorder with an initial rating of 10 perfect, effective February 2013. The Veteran's rating was increased in an October 2014 rating decision to 50 percent, effective February 2013. For the reasons that follow, the Board concludes that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. 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). 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 for 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 or place; or memory loss for names of close relatives, own occupation or own name. VA treatment records, the January 2015 and December 2019 VA examinations, and the Veteran's lay statements show that the Veteran's unspecified anxiety disorder was manifested by symptoms associated with a 50 percent rating (impairment of short- and long-term memory, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (suicidal ideation). He also had symptoms that are not listed with a specific rating, such as hypervigilance. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that he was hypervigilant in crowds and checked his locks and doors during the night at home. See, e.g., January 2014 VA examination and August 2018 VA treatment records. However, hypervigilance is similar to near-continuous panic, which is contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during a July 2018 mental health screening the Veteran reported no current plan due to protective factors such as his family and faith. VA treatment records and the Veteran's May 2019 Board testimony suggest that the Veteran's suicidal ideation has been present on a regular basis throughout the appeal period, and that it has been underrepresented in both frequency and severity in treatment records due to his fears of losing his weapons and job. While the Board finds the competent medical and lay evidence, on balance, does indicate continued suicidal ideation throughout the appeal period, the Veteran has never endorsed any prior attempts or active plans, and has continuously asserted protective factors as above. See, e.g., April 2016 and August 2018 VA treatment records. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The January 2014 VA examination indicated that the Veteran's symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The December 2019 VA examination indicated that the Veteran's symptoms resulted in 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. Neither of these assessments are consistent with the 70 percent rating criteria. However, the Veteran's May 2019 Board hearing testimony and VA treatment records, such as the August 2018 Mental Health Comprehensive Evaluation, suggest the Veteran has underreported the impact of his symptoms due to fears of losing his weapons and job. Further, the Veteran has regularly endorsed drinking six to twelve alcoholic beverages every night to cope with his symptoms. Additionally, January 2015 VA treatment records note that the Veteran deliberately puts himself in dangerous situations. Accordingly, on balance, the Board finds the Veteran's symptoms result in a level of impairment that more closely approximates the 70 percent rating criteria. Mental status examinations in VA treatment records and the January 2014 and December 2019 VA examinations indicate that the Veteran was frequently guarded, and generally had a depressed or anxious mood with congruent affect. During the December 2019 VA examination, the Veteran reported that he has difficulty dealing with people at work, is estranged from his biological children and is once divorced, but has a good relationship with his current partner, stepchildren, and grandchildren. The competent medical evidence indicates that the Veteran does not experience symptoms contemplated by a 100 percent rating, and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran reports significant difficulty interacting with others, social isolation, and some impaired familial relationships, he has been able to maintain employment throughout the appeal period and reports a good relationship with his present partner, stepchildren, and grandchildren. In short, resolving reasonable doubt in favor of the Veteran, the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating, but no higher. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 70 percent rating, but no higher, are met. Finally, the Board does not find that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record or argued by the Veteran or his attorney. As noted, the Veteran has been employed throughout the pendency of this appeal, and there is no evidence that such employment is marginal. Accordingly, the issue of entitlement to a TDIU is not raised and will not be further considered. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, Associate 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.