Citation Nr: 21067034 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-17 629 DATE: November 3, 2021 ORDER Entitlement to a 50 percent disability rating for service-connected unspecified anxiety disorder is granted. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's unspecified anxiety disorder has been manifested by no worse than occupational and social impairment with reduced reliability and productivity. 2. The competent medical and other evidence of record reflects it is at least as likely as not the Veteran is unable to obtain and/or maintain substantially gainful employment due to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for the Veteran's service-connected unspecified anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130. Diagnostic Code 9413. 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 and December 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in August 2020. A transcript of the hearing is in the Veteran's file. 1. Entitlement to a 50 percent disability rating for service-connected unspecified anxiety disorder Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable rating criteria for mental disorders, a 30 percent rating is warranted when there is 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. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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 work-like setting); and inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent is warranted 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002). Thus, the Board will consider whether "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," and, if so, the "equivalent rating will be assigned." Id. A veteran may only qualify for a given initial or increased rating based on mental disorder by demonstrating the particular symptoms associated with that percentage in the rating criteria, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Although a veteran's symptomatology is the primary consideration in assessing a disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for that rating. Id.; 38 C.F.R. § 4.130. The Veteran is currently rated at 30 percent for anxiety disorder, and he contends that a higher rating is appropriate. At the August 2020 Board hearing, his representative stated he is seeking at least a 50 percent rating. VA treatment records from May 2014 show the Veteran reported having incidents of severely elevated anxiety. The clinician noted that he presented his symptoms and experiences in a much lighter way than he actually experienced them. In a June 2014 psychiatry consultation, the Veteran stated he has intense memories of his war experiences about four times a year and his wife stated he moans in his sleep. He avoids watching or reading news about military affairs. He also stated he occasionally forgets why he walked into a room for a task. The Veteran was afforded a VA examination in November 2014, where he was diagnosed with Panic Disorder without Agoraphobia. The VA examiner noted anxiety, panic attacks that occurred weekly or less often and mild memory loss. The Veteran reported getting along with his wife, children, and friends. He enjoyed watching television, bowling and antiquing. The Veteran retired from his job three years prior and works around the house, getting together with his friends and keeping busy. He denied suicidal or homicidal thoughts, his mood and judgment were fair and there was no indication of any psychotic manifestations. The VA examiner concluded that the Veteran's anxiety disorder causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. VA treatment records from April 2017 show that the Veteran had a significant decline in cognitive function. Further, he presented with poor sleep related to frequent nightmares. In June 2017, treatment records show that he continued to take medication for his anxiety and reported having nightmares only on days when he does not take medication. He described his mood as "okay". In September 2017, he stated was less forgetful, did not have a depressed mood and his anxiety was low. He described his mood as "very good". The Veteran underwent another VA examination in October 2017. He was diagnosed with anxiety disorder. He reported that he started having more problems with sleep, including night terrors, and waking up his wife. He had nightmares once a month about Vietnam. The Veteran had been married for almost 50 years and reported retiring in 1999 and working part-time until 2007. He reported that he had poor compliance with his medication and sees a psychiatrist every other month. He had symptoms of depression, including tearfulness, loss of usual interests, and "melancholy." He stated he does not have many worries as his marriage is fine, and he is financially stable. He also noted he cannot remember the last time he had a panic attack as he avoids triggers. He does not like confined spaces and avoids talking or thinking about Vietnam and stated, "I hate it so much". He denied suicidal ideation, intrusive memories, and flashbacks. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment and mild memory loss. The VA examiner also concluded that the Veteran's anxiety disorder causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In April 2018, the Veteran submitted a lay statement stating that he was evaluated by a private facility and was found to have significant difficulties with memory, difficulties with engagement in social situations/conversations with poor recall and processing speed, impaired judgement, difficulty understanding complex commands, impaired abstract thinking, and disturbances of motivation and mood. He also reported increased visitations with his psychiatrist to address his increasing symptoms of depression, anxiety, mood, agitation, posttraumatic stress disorder and sleep disturbances. The Veteran reported that this has impaired his ability to maintain effective relationships with his family and friends and he is unable to engage in leisure or work-related tasks. The Veteran submitted a March 2018 evaluation by his neurologist, where he was diagnosed to have Alzheimer's Disease. In the evaluation, the Veteran's wife stated that he has issues with irritability and remembering facts. He also has difficulty remembering day to day tasks and seems to be sleeping more. The Veteran reported that he has problems recalling things that have happened in the recent past and names of people he met. The Veteran also submitted a letter in April 2018 from his private provider, Dr. B.R., that the Veteran has had a significant decline in his mental and physical health. She also noted he has been under the care of a psychiatrist to address his depression, anxiety, agitation, PTSD, and sleep disturbances. In an August 2018 Mental Disorders examination, the examiner noted a trauma related disorder and mild neurocognitive disorder. He was able to differentiate the symptoms, as he attributed the Veteran's anxiety symptoms to the trauma related disorder and the cognitive dysfunction to the neurocognitive disorder. The Veteran had symptoms of anxiety, suspiciousness, mild memory loss, impairment of short- and long-term memory, memory loss for names, impaired abstract thinking, and gross impairment in thought processes. His speech was impaired due to word finding difficulty, mood was euthymic, and affect was tearful and labile. The examiner found total occupational and social impairment and stated the impairment is due to both his disorders in indeterminate proportion. In a November 2018 clarifying opinion, the examiner stated that the anxiety disorder evolved into the Veteran's other specified trauma and stressor related disorder. Further, the examiner stated that the symptoms of other specified trauma/stressor disorder include anxiety, panic attacks, trouble sleeping, arousal to and avoidance of cues and triggers, and suspiciousness. Symptoms of the neurocognitive disorder include significantly poor memory, impaired ability to communicate in a meaningful manner, impaired abstract thinking, and impaired thought process/decision-making. At the August 2020 Board hearing, the Veteran's daughter stated that her father was very good at masking his symptoms when he went to a psychiatrist and that he would underreport his true functioning. She also stated it was a coping mechanism for him as he always tried to please people, so he would say he was fine, when in fact, he would be struggling. She also contends that he did not know what anxiety and depression were or realize when he had it. For example, he did not realize that when he paced or had trouble finding words, they were driven by anxiety. She also noted that the Veteran was unaccompanied by his family when he went to the first few appointments, and the examination reports were not reflective of what she and her mother observed regarding the Veteran. Based on the foregoing, the Board finds that a 50 percent rating is appropriate for the entire period on appeal. The record shows that the Veteran suffers from functional and social impairment. He avoids activities that trigger his symptoms, including those related to military. He has frequent nightmares with chronic sleep impairment, and he experiences periods of anxiety and depression. Significantly, his daughter testified that he underreports his symptoms as he attempts to please people. His underreporting of symptoms is corroborated by the May 2014 VA clinician, that indicated he experiences symptoms more severely than he presents. Finally, the August 2018 VA examiner endorsed the Veteran's service connected component of his condition included anxiety, panic attacks, trouble sleeping, arousal to and avoidance of cues and triggers, and suspiciousness. Therefore, the evidence of record stands in at least equipoise that the Veteran's anxiety disorder warrants a 50 percent rating, and the Board resolves all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As the Veteran has not evidenced any suicidal ideation, nor any neglect of personal appearance, near continuous panic or depression affecting the ability to function independently, an inability to establish and maintain effective relationships, nor any similar symptoms that would evidence occupational and social impairment with deficiencies in most areas based on his service connected disorder, a higher 70 percent rating is not warranted. Accordingly, a rating of 50 percent, but no higher, is warranted for service-connected anxiety disorder. 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is currently assigned a 60 percent rating for prostate cancer, a 30 percent rating for Parkinson's Disease, and noncompensable ratings for erectile dysfunction and scars, in addition to a 50 percent rating for anxiety disorder granted above. The combined rating of the Veteran's disabilities is now 90 percent. Thus, he satisfies the criteria for consideration of TDIU on a schedular basis. The Veteran contends his prostate cancer, anxiety disorder and Parkinson's Disease prevent him from employment. He indicated that his highest education level was four years of high school. He was last employed full time in 1999 as an energy technician, working for that employer since 1970. After retirement, he worked in HVAC repairs. He stated he was forced to leave this position due to layoffs. The Veteran contends his he can no longer work as his job was physically demanding but he is also unable to perform sedentary employment due to a lack of bladder control. An October 2017 Mental Disorders VA examination included the examiner's conclusion the Veteran could perform both physical and sedentary employment. An August 2018 VA examination for Urinary Tract conditions, revealed the Veteran's bladder condition impacts his ability to work as he cannot bend, lift, and carry heavy weights as it increases urinary leakage. In a November 2019 Parkinson's Disease VA examination, the examiner noted that the Veteran's condition makes it difficult for him to be able to perform normal working movement of the body with normal excursion, strength, speed, coordination, or endurance needed for a work environment. The Veteran also a submitted letter from his private doctor in April 2018. She noted that the Veteran had a significant decline in his health to address his depression, anxiety, agitation, PTSD, and sleep disruptions. She found that these difficulties with daily tasks, memory and mood were significant enough where he is unable to maintain successful full or part-time employment, even with accommodations. Additionally, she noted his bowel and bladder control issues happen both at rest and worsen with movement and activity. He cannot be far from a bathroom and his condition has worsened to the point where he needs to travel with an RV that has a full bathroom. She opined that given his mental and physical challenges, he is unable to perform an occupation of any kind. Further, in the December 2019 evaluation for Parkinson's Disease, the examiner stated the Veteran would not be able to work in any capacity in his former job of HVAC, electrical and gas maintenance. Based on the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected disabilities. As noted above, he meets the schedular requirements, he has been unemployed throughout the pendency of this appeal, he has limited education and his employment history is limited to labor requiring physical work. Further, VA and private examiners support the conclusion, the Veteran is unable to work due to his service connected disabilities. As there is at least a balance of evidence on the question of whether his service-connected physical disabilities have been shown to be severe enough to preclude employment, entitlement to TDIU is warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.