Citation Nr: 21071830 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-24 099 DATE: December 1, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for the Veteran's service-connected anxiety disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's unspecified anxiety disorder has more nearly approximated social and occupational impairment which causes reduced reliability and productivity. CONCLUSION OF LAW The criteria for establishing entitlement to an initial disability rating in excess of 50 percent for the Veteran's service-connected anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board denied a disability rating in excess of 50 percent for the Veteran's anxiety disorder. The Veteran appealed to the Court of Appeals for Veteran's Claims (Court) and in a March 2021 Memorandum decision, the Court vacated and remanded the Board's October 2019 decision for action consistent with the Memorandum decision. This case is now back before the Board. The Court of Appeals for Veteran's Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the issue of TDIU has been raised by the record and is, thus, properly before the Board by virtue of the Veteran's increased rating claim, pursuant to Rice. Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Unspecified Anxiety DisorderLegal Criteria Unspecified anxiety disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. In pertinent part, a 50 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 worklike setting); and inability to establish and maintain effective relationships. Finally, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis At the outset, the Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 138081 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Critically, the Board observes that the above-noted evaluation criteria for a 50 percent disability rating indicates an array of symptoms, which are likely sufficient to cause reduced reliability and productivity in both an occupational and social setting. Such symptoms need not rise to the level of activity preclusion, but rather negatively influence or impact upon work and social function to such an extent that they result in reduced reliability and productivity. The symptoms considered in determining the level of impairment under the Rating Schedule for PTSD are not restricted to the symptoms provided in the diagnostic code. Instead, 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, Fifth Edition (DSM-V). Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was initially provided with a November 2011 VA Post-Traumatic Stress Disorder (PTSD) examination regarding his claimed psychiatric disability. The examiner diagnosed the Veteran with anxiety disorder, not otherwise specified, and indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria. The examiner opined that the Veteran's psychiatric disorder caused 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. The examiner reported that the Veteran had been divorced two times but had recently married again after a 13-year relationship. The examiner further noted that the Veteran retains a close relationship with his children, has two close friends, and that he socializes well. The examiner noted that the Veteran has recurring distressing dreams and engages in efforts to avoid thoughts, places, or people that arouse recollection of his trauma. Further, the examiner reported the Veteran experiences symptoms of anxiety and chronic sleep impairment, and that his dreams and anxiety have increased following his retirement, likely as a result of more free time and being less occupied. The examiner also noted that the Veteran had a DUI at the time his second marriage was failing, but no other arrests or contacts with the criminal justice system. In his July 2015 VA Form 9, the Veteran reported that his flashbacks were getting worse as he got older. He noted that he has bad nightmares, does not sleep well, cannot function in large crowds, and is startled by any "out of the ordinary" sounds. The Veteran continued that he has no patience, lashes out at others verbally, and stays to himself a lot not leaving home unless necessary. In response to an August 2018 Board Remand, the Veteran was provided with an April 2019 VA Mental Disorders examination. The examiner diagnosed the Veteran with anxiety disorder with panic symptoms and depression. The examiner opined that the Veteran's psychiatric disability causes occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was still married to his third wife and that they had been together for 20 years. Further, the examiner noted that he has support from his sister and brother. The examiner documented that the Veteran worked in paper mills for 16 years then worked for an electrical job for 20 years and retired at the age of 55. The Veteran's wife reported that he no longer goes fishing, and he denied having any hobbies. The examiner documented the Veteran's symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner reported that the Veteran was well groomed; oriented to time, person, and place; denied homicidal and suicidal ideation; affect was constricted; thought processes were linear, logical, and goal-directed; insight, judgment, and reasoning were intact; and there was no evidence of any perceptual disturbances, paranoia, or delusional thinking. The Veteran's memory was noted as being good and he was noted to be able to handle his financial affairs. The examiner opined that the Veteran's condition followed the natural progression of the disease and that his mental status had worsened since this prior VA examination. The examiner commented that the Veteran's mental health notes show he refused medications and group therapy and that the process of recovery is therefore slowed. The examiner reported that the Veteran's symptoms are not totally or severely impairing him. The Veteran's VA treatment records throughout the period on appeal noted multiple psychiatric symptoms. Further, several treatment notes indicated the Veteran's wife came with him to his appointments and volunteered information with regard to his conditions. Throughout the records the Veteran was adequately groomed; oriented to time, person, and place; and well-nourished. The Veteran reported nightmares, difficulty sleeping, and depressive symptoms. The Veteran's anxiety fluctuated throughout the period on appeal from moderate to severe symptomatology. The Veteran's wife reported that his personality had changed since 2004 and he remains disinterested in activities when he was once a highly active person. Further, she reported that the veteran has increased irritability and anger, noting that the Veteran loses his temper easily and will go off screaming and cursing. The Veteran reported that he is short tempered, has become an aggressive driver, is impatient, gets mad over "stupid stuff," and that he has a core group of friends but that is it. The Veteran reported difficulty with his short-term memory. The Board notes that a December 2018 Blessed-Orientation-Memory-Concentration test showed a score of 4 out of 28 with higher scores indicating greater impairment with scores over 10 considered significant. The Board also notes that a December 2018 depressive symptoms mental health questionnaire indicated that the Veteran experienced motor retardation for several days over the prior 2 weeks. The Veteran reported maintaining good relationships with his children and his siblings. The Veteran continually denied suicidal ideation, homicidal ideation, delusions, and hallucinations. The Veteran was additionally provided with a June 2021 VA Mental Disorders examination. The examiner diagnosed the Veteran with unspecified anxiety disorder and noted that based upon the examination and a review of the Veteran's treatment records that the Veteran's diagnosis remains consistent with anxiety disorder. The examiner elaborated that all of the Veteran's psychiatric symptoms are accounted for under his current diagnosis and he does not warrant a separate diagnosis. The examiner opined that the Veteran's psychiatric disability caused occupational and social impairment with reduced reliability and productivity. The Veteran reported a good relationship with his wife and children and that he has a few "long-distance" friendships but mainly is connected with his family members. The examiner recorded the Veteran's symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran denied homicidal and suicidal ideation. The Veteran's intelligence was reported as average, his judgment and insight were intact and fair. The examiner noted that there was no evidence to suggest that the Veteran had difficulty with attention and concentration. Further, the examiner documented that with regards to the Veteran's memory, as far as can be determined, the Veteran was able to reconstruct details of recent and remote past in an accurate fashion without the benefit of notes or prompts. Further, the examiner noted that while the Veteran endorsed episodes of nervousness, they did not rise to the level of panic attacks as defined by the DSM-5 criteria. The Veteran was noted to be capable of managing his financial affairs. In this case, the evidence plainly establishes the Veteran's psychiatric manifestations have resulted in reduced reliability and productivity in both occupational and social settings. The Veteran's psychiatric manifestations have resulted in impairments that clearly diminish his consistency and dependability in these settings more than just occasionally. As such, the Board finds that even affording the Veteran the benefit of reasonable doubt, his disability picture most nearly approximates the criteria necessary for a 50 percent disability rating throughout this period of the appeal and no higher. However, the preponderance of the evidence demonstrated the Veteran did not experience delusions, hallucinations, homicidal ideations, suicidal ideations, or grossly inappropriate behavior. There was also no evidence of illogical, obscure, or irrelevant speech. Additionally, there was no evidence of neglect of personal hygiene. He has been able to perform activities of daily living and was oriented to person, time, and place. Additionally, the evidence does not show the Veteran experienced memory impairments of such severity that he forgot names of close relatives, his own occupation, or his own name. While the Veteran reported short term memory difficulties, he has not been shown to have a significant memory impairment, and his memory on his VA examinations was documented as good. Additionally, the Board notes that short term memory impairment is specifically contemplated by the criteria for a 50 percent disability rating. While the Veteran did experience some symptoms contemplated by a 70 percent ratingnamely impaired impulse control, such as unprovoked irritability with periods of violence and the Veteran reported that he occasionally experiences retarded motor control, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the bulk of the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. The evidence simply does not show that the social and occupational impairment from his PTSD had more nearly approximated deficiencies in most areas required for a 70 percent rating or the total impairment required for a 100 percent rating at any time during this period of the claim. For these reasons, the Board finds that the rating of 50 percent, and no more, is warranted for the period on appeal. Consideration has been given to assigning a staged rating; however, as explained above, the evidence does not suggest that the severity has fluctuated during this period of this appeal, so a staged rating is not appropriate for this claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND TDIU While the Board regrets further delay, after a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. The record as presently developed does not include sufficient evidence upon which to adjudicate the Veteran's TDIU claim. The Board notes that while there are examinations which discuss the Veteran's disabilities in the record, no examination addresses the combined functional impact of all of the Veteran's disabilities on his employability. As such, the Board finds a medical opinion is necessary to address and assess the functional impact of all the Veteran's service-connected disabilities together on his employability. The matters are REMANDED for the following action: Provide the claims file to an appropriate examiner, who has not previously opined on this case, to obtain an opinion regarding the functional impairment caused by the Veteran's service-connected conditions. The examiner should comment on the Veteran's ability to function in an occupational environment and describe the functional limitations associated with all the Veteran's service-connected conditions. The examiner must fully describe the functional impact of each of the Veteran's service-connected disabilities and in so doing, discuss the mental and physical capabilities required for gainful employment in the Veteran's case. The examiner must discuss the combined effects of the Veteran's service-connected disabilities on his ability to perform the mental and physical acts required for gainful employment. The examiner should refrain from opining on whether the Veteran is unemployable or employable and instead focus and reflect on the functional limitations/impairments the Veteran experiences due to his service-connected disabilities and how they would impact occupational and employment activities. In doing so, the examiner is asked to take the Veteran's level of education and previous work experience into consideration but disregard his age or any impairment caused by nonservice-connected disabilities. The examiner must provide a complete explanation for all opinions expressed. If the examiner determines an examination is necessary in order to comment on the above, then an examination must be scheduled. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.