Citation Nr: 21068730 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-14 229A DATE: November 12, 2021 ORDER An initial rating of 50 percent but no higher prior to November 13, 2019 for a panic disorder is warranted. A rating of 70 percent but no higher as of November 13, 2019 for a panic disorder is warranted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to November 13, 2019, the severity, frequency, and duration of symptoms consisting of depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment more closely approximate occupational and social impairment with reduced reliability and productivity. 2. As of November 13, 2019, the severity, frequency, and duration of symptoms consisting of daily panic attacks caused difficulty in establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances. Total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but no higher, for panic disorder prior to November 13, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412. 2. The criteria for a 70 percent rating, but no higher, for a panic disorder as of November 13, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript has been associated with the claims file. This matter was remanded by the Board in June 2021 for additional development. Finally, a review of the evidence of record shows that the Veteran has asserted that her panic disorder has caused her to become unemployed. While the Veteran has not filed a separate application for TDIU, under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), entitlement to a TDIU, when reasonably raised by the record, is part of any claim for an increased rating. The issue of entitlement to a TDIU has thus been included, and is addressed below in the remand portion of this decision. 1. Entitlement to an initial rating in excess of 30 percent prior to July 23, 2021, and in excess of 70 percent thereafter for a panic disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must 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: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, in pertinent part, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases 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 is warranted if the disability is productive of 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. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A September 2015 private mental health report shows that the Veteran got along well with her mother and siblings. She was single after a two year relationship. The Veteran reported that she had five previous relationships that ended due to the mental health issues, controlling behaviors, and substance use. The Veteran was noted to have five children and got along well with all of them. The Veteran's educational background was that she was a student in college and had one and half years of schooling left. Regarding her past employment, she was a case manager for in a Veteran's services departments and loved her job. She reported that her work with Veteran's caused triggering of her PTSD and was not able to concentrate on the tasks at hand. The Veteran reported she was in good health and had a prior history of panic attacks. She reported that she had never been hospitalized for any mental health reasons but did have a past suicidal ideation. She reported that she had been in counseling since 2015, and was on and off with counseling for several years. Her last suicidal ideations was in 2014. The private examiner diagnosed the Veteran with posttraumatic stress disorder (PTSD), generalized anxiety, and major depression and characterized PTSD of a total and permanent severity. An April 2016 VA initial PTSD disability benefits questionnaire (DBQ), shows that the examiner determined that the Veteran's has another mental disorder but did not meet the diagnostic criteria for PTSD under DSM-5 criteria. The Veteran was diagnosed with panic disorder and other specifical trauma with stressor related disorder. The mental disorder was noted to caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during periods of significant stress, or; symptoms controlled by medication. The Veteran was noted to have five kids. She has about three friends, enjoyed BBQs, working out, and finally getting back to friendships after her abusive boyfriend who isolated her from others. The Veteran drove herself to the appointment and was independent with activities of daily living. The examiner noted that the Veteran was a high school graduate. The Veteran was noted to work as a case manager for the last 3 years with homeless Veterans. She reported she enjoyed her job but it triggered memories of her active service. The Veteran reported getting along with her coworkers, having good performance at work, and did not miss any days at work. The Veteran described a previous work history as a case manager with panic attacks that caused her to miss work. The Veteran's mental health history was reported as private counseling since early 1990s for panic attacks and dealing with abusive relationships. She had prescribed antidepressants and Xanax. Symptoms were noted as depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment. The examiner observed the Veteran as tearful, anxious, and thought process was logical and goal-directed. A November 2019 VA Counseling Record Narrative Report completed by a vocational rehabilitation counselor shows that the Veteran did not having any legal, criminal, or substance abuse related issues that may otherwise serve as barriers to obtaining suitable employment. The Veteran's current means of financial support included compensation from service-connected disabilities, self-employment as a Notary, and her current unemployment which would end in December 2019. The Veteran had financial stability at this time and was not experiencing family issues that may serve as barriers to employment. The Veteran also noted to have stable housing at this time and was not willing to relocate in order to gain suitable employment. The Veteran also was noted to having graduated from high school and had completed multiple college courses in the field of business administration. The Veteran also had work experience since 1997 in the field of social/human service to include as a case manager. The Veteran was working part time as a notary which could not be considered suitable at the time. The Veteran reported experiencing stress and anxiety when working closely with others. She indicated that she experienced stress/panic when working closely with clients who are experiencing troubles with finances, housings, and basic living needs. While the Veteran worked as a case manager for over 20 years, her panic disorder continued to be aggravated by work in this capacity and direct client services. The Veteran stated that exposure to others in crisis caused her to experience anxiety and stress that results in panic attacks. The evaluator reported that the Veteran's previous work as a case manager was no longer suitable. The counselor reported that the Veteran was not able to obtain, maintain, and/or prepare for employment in an occupation that did not aggravate her service connected disabilities. Her impairments were found to result in substantial part from service connected disabilities. The counselor reported that the Veteran did not have the educational skills and background to pursue other vocational goals but intending on receiving service through VA to develop skills as part of a rehabilitation plan. During a September 2020 Board Hearing, the Veteran testified that her psychiatric disability resulted in constant panic attacks, limited her employment capabilities, affected relationships with her family, friend, and co-workers. She also reported she was seeking counseling through VA counseling and vocational rehabilitation. The Veteran testified that she did not take medication for her psychiatric condition due to the side effects of increased panic attacks. She also described periods of irritability with lots of panic attacks during the night. The Veteran reported that during panic attacks she would throw stuff around, slam doors, and yell at her children. She reported that she was married and divorced twice, and attributed the dissolution of the marriages due to the psychiatric disability. She also reported that her relationships with her children were not very stable. The Veteran testified that her panic attacked negatively impacted her job as a case manager as she would be triggered by problems her clients had. Long and short term memory issues were also reported as affected. Regarding the impact on her job, she reported that she still completed her job duties under stressful panic attacks and needed to take frequent breaks. A July 2021 VA psychiatric DBQ shows that the Veteran was diagnosed with a panic disorder and other specified/trauma related disorder. Occupational and social impairment with reduced reliability and productivity was assessed. The Veteran reported that she was single and had not been able to be in a relationship since 2013 due to her panic attacks. She also reported significant social isolation associated with her psychiatric disability. The examiner reported that the Veteran worked as case manager since April 2021 and had a long history of short-term employment due to panic attacks. The Veteran reported that she attempted more school last year but stopped due ot mental health issues. She reported that her panic attacks have increased and occurred on a near daily basis. She was afraid to drive long distances and had difficulty sleeping due to the panic attacks. The Veteran reported experiencing a suicidal ideations in April and called the crisis hotline. Symptoms were identified by the examiner as depressed mood; anxiety, suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work, or work like settings; and an inability to establish and maintain effective relationships. The Veteran was noted to be presented with causal appearance, affect was flattened, and presented as engage. The Veteran reported a long history of short-term relationships and short-term employment due to panic attacks. After a review of the evidence of record the Board finds that an initial rating of 50 percent but no higher is warranted prior to November 13, 2019 for the service connected panic disorder. Here, the evidence shows symptoms were noted as depressed mood, anxiety, panic attacks more than once a week, and chronic sleep impairment. Thus, there is disturbance of motivation and mood. The evidence supports that the Veteran has difficulty in establishing and maintaining effective work and social relationships in that she has difficulties with relationships as shown by past divorces and unhealth relationship she had ended during this time period. Most importantly, the most severe symptom exhibited by the Veteran that meets the criteria for a 50 percent rating, which were her weekly panic attacks caused by her interactions with clients which in turn affected her work performance. The other symptoms for consideration in the level of social and occupational impairment include that the Veteran's speech was normal, her panic attacks more than once per week were noted, and thinking and judgment were shown to be normal. Resolving all doubt in favor of the Veteran, however, the Board finds that the Veteran's symptoms are of similar severity, frequency, and duration. Accordingly, an initial 50 percent evaluation prior to November 13, 2019 is warranted. The Board also finds, however, that the evidence does not support a rating higher than the assigned 50 percent rating prior to November 13, 2019. Although 1 or 2 reports of suicidal ideations were noted, the remaining evidence of record demonstrates no additional suicidal ideations. VA and private records also did not show impaired impulse control. The Veteran during this time period did not report obsessional rituals, panic or depression that affects the ability to function independently, appropriately, or effectively. The medical records do not show that the Veteran had impairments or difficulties with speech, thought processes, or orientation. It was also noted that the Veteran did not have neglect of hygiene or appearance. Although the evidence also shows significant difficulty with effective relationships, the Veteran reported having three friends, enjoyed BBQ's and time with her children. Thus, there is not an inability to establish and maintain effective relationships. Accordingly, the Board finds the severity, frequency, and duration of the Veteran's psychiatric symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. A rating in excess of 50 percent for this service-connected panic disorder prior to November 13, 2019 thus is not warranted. The Board notes that the private September 2015 report noted that the Veteran's psychiatric disability caused the Veteran to be totally and permanently disabled. However, the Board finds that the private evaluator did not describe symptoms or the effect of those symptoms that would cause a total disabilty rating as the private evaluator noted the Veteran was working, had good relationships with her children, and was undergoing counseling. Had the Veteran's psychiatric disability been total, she would not have been able to participate in these types of activities or have these types of relationships. Additionally, this 2015 report shows that, occupationally, the Veteran was working and she was a student. The report facts, as summarized here and in more detail above, do not tend to support the conclusion of this report of total rating. Therefore, the Board assigns the September 2015 private report low probative value and thus does not support a rating in excess of 50 percent prior to November 13, 2019. As of November 13, 2019, the Board finds evidence of record factually supports an increased rating of 70 percent, but no higher, for the Veteran's psychiatric disability. During this period the evidence shows that the Veteran's service-connected panic disorder resulted in daily panic attacks and difficulty in establishing and maintaining effective work relationships; and difficulty in adapting to stressful circumstances. The Board notes that the Veteran's panic attacks caused impairment with the Veteran's relationships with family members and most importantly caused her to frequently change jobs as a case manager which led to an unsteady work history. The Board finds that collectively, these symptoms are indicative of occupational and social impairment with deficiencies in most areas, to include family relations and mood. The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the occupational and social impairment in the referenced areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The treatment records, private examination reports, and VA examination reports were indicative of occupational and social impairment that approximated the criteria for a 70 percent rating. The findings of the 2019 Vocational Rehabilitation Counselor report also supports that that the Veteran had occupational and social impairment with deficiencies in most areas, such as work. Therefore, the Board finds that a rating of 70 percent but no higher is warranted as of November 13, 2019 for the panic disorder. In finding a higher (total) rating is not warranted at any time during the course of the appeal, the evidence does not tend to indicate that the Veteran experienced total social and occupational impairment. See Total, Merriam-Webster, https://www.merriam-webster.com/dictionary/total (defining the adjective "total" as, among other entries, absolute). In this regard, while the Veteran reported stressful relationships with a few of her children, she also had periods of positive relationships with other of her children as well. Additionally, while limited, she was still working as a case manager helping homeless Veteran's which indicates she is not totally occupationally impaired. Other factors for consideration include that the Veteran also did not report persistent delusions or hallucinations. There was no evidence of grossly inappropriate behavior and the Veteran continued to maintain good hygiene and grooming. The Veteran denied disorientation to time or place, or memory loss for names of close relatives, own occupation, or name. While the Veteran did admit some suicidal ideations in the past these were not of the frequency to result in total social and occupational impairment. Based on the foregoing, a 100 percent rating is not warranted. REASONS FOR REMAND 3. Entitlement to a TDIU is remanded The issue of entitlement to TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran has provided statements that her panic disorder has caused her to become unemployed at certain periods of the appeal. However, the Board finds that additional development is required in order to determine the Veteran's work history and if her service connected psychiatric disabilty caused to be unable to gain and maintain employment. Because the AOJ has not yet considered whether the Veteran is entitled to TDIU, the issue must be remanded to the AOJ for initial adjudication and development. This matter is REMANDED for the following action: Provide the Veteran with appropriate notice and assistance regarding the issue of entitlement to a TDIU rating. Specifically, the Veteran should be informed as to the information and evidence necessary to substantiate the claim for a TDIU rating, including which evidence, if any, the Veteran is expected to obtain and submit, and which evidence will be obtained by VA. The Veteran should be asked to complete and submit a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, to provide VA with important information, to include concerning education and occupational history. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.