Citation Nr: 21072652 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-07 861 DATE: December 3, 2021 ORDER Entitlement to an initial rating in excess of 70 percent disabling for anxiety disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from January 1982 to February 1987. In May 2021, the Board remanded the issue on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the disability at issue. Schafrath v. Derwinski,1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119(1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Entitlement to an initial rating in excess of 70 percent disabling for anxiety disorder The Veteran contends that his anxiety disability warrants a higher rating. The Veteran's anxiety disability is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Pursuant to that General Rating Formula, a 70 percent 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. Id. A 100 percent evaluation 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; memory loss for names of close relatives, own occupation, or own name. Id. In August 2010, the Veteran attended a VA Mental Disorders examination. The examiner diagnosed, in pertinent part, anxiety disorder not otherwise specified (NOS).The Veteran reported symptoms of nightmares linked to military service (at least 2/x week), intrusive thoughts (daily), flashbacks (lx/4-6wk), extreme avoidance of people, places ,activities and thoughts, feelings, conversations related to traumatic experiences, difficulty remembering aspects of traumatic event, sense of ennui, no expectations for the future, difficulty falling asleep and waking several times throughout the night (w/sleep problems exacerbated by his occupation requiring shift work), extreme irritability and angry outbursts and verbal explosions. Upon examination, the examiner noted a clean appearance, unremarkable psychomotor activity and speech, cooperative attitude, appropriate affect and a suspicious agitated mood. Further, no delusions, hallucinations, homicidal or suicidal ideations were noted. In August 2013, the Veteran attended a VA Mental Disorders examination. The examiner diagnosed, in pertinent part, anxiety disorder NOS. The examiner noted that occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking, and/or mood as the best summarization of the Veteran's level of occupational and social impairment. Veteran reported that he didn't have any friends, has a hard time trusting people; and that as he ages, his symptoms of anxiety, nightmares, and intrusive thoughts have become more frequent. Upon examination, symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, impaired judgement, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. In December 2014, the Veteran attended a VA Mental Disorders examination. The examiner diagnosed, in pertinent part, anxiety disorder NOS. The examiner noted that occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking, and/or mood as the best summarization of the Veteran's level of occupational and social impairment. Upon examination, symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly, chronic sleep impairment, mild memory loss, flattened affect, circumstantial, circumlocutory or stereotyped speech, impaired judgement, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The examiner noted that the "Veteran presented oriented X3, his affect was restricted, and his eye contact was fair. he was tearful at some points during the session. He denied suicidal or homicidal ideation. His energy level was low and thoughts negative. He had a paranoid flavor to his concerns and difficulties with coworkers. He reports chronic sleep issues. He is concerned that his increased level of anxiety is causing physical symptoms such as pulsating of vein on his nose." In a March 2015 private treatment record was received. Dr. R.W.A indicated a diagnosis of generalized anxiety disorder nad major depressive disorder along with symptoms of deficiencies in family relations, obsessional rituals, persistent irrational fears, deficiencies in work or school, depression affecting the ability to function independently, neglect of personal appearance and hygiene, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility, inability to establish and maintain effective relationships, and deficiencies in judgment. In December 2016, a July 2016 dated private medical assessment was received. Dr. A.E. diagnosed major depression and severe generalized anxiety and indicated at the time of examination, the Veteran was "oriented as to time, place and person. His speech is coherent. His general appearance is one of depression. As mentioned before, he cried without any apparent reason. His thought processes are responsive. His recent memory is good. His remote memory is fair, at best. His affect is constricted. His mood is that of depression and anxiety. His judgment and insight; fair. There is no evidence of symptoms of psychosis, such as visual or auditory hallucinations. He denies suicidal ideation." Finally, he noted that it was his opinion that the Veteran was 100 percent disabled. In May 2017, private medical assessment was received. Dr. R.W.A. diagnosed generalized anxiety disorder along with symptoms of deficiencies in family relations, obsessional rituals, persistent irrational fears, deficiencies in work or school, depression affecting the ability to function independently, neglect of personal appearance and hygiene, deficiencies in mood, difficulty in adapting to stressful circumstances, gross impairment in thought processes or communication, intrusive recollections of a traumatic experience, unprovoked hostility, inability to establish and maintain effective relationships, and deficiencies in judgment. In December 2019, the Veteran attended a VA Mental Disorders examination. The examiner diagnosed unspecified anxiety disorder. The examiner noted that occupational and social impairment with reduced reliability and productivity as the best summarization of the Veteran's level of occupational and social impairment. Upon examination, symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances in motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the "Veteran was cooperative (though distrusting), and he presented as euthymic and oriented x3. Veteran was casually dressed, and reasonably well-groomed. He is of above-average height and weight. No abnormality in gait/posture. Rate and volume of speech were normal. Eye contact was good. Insight, judgment and impulse control were fair. Veteran denied psychosis, and suicidal/homicidal ideation. Veteran spoke excessively during the evaluation, which caused interview to last much longer than usual." The examiner also noted: This is a veteran who appears to meet criteria for unspecified anxiety disorder at this time. Veteran stated he frequently experiences anxiety, he paces a lot, he isolates himself, and he avoids people. Veteran stated he has had a few panic attacks in the past, but does not typically experience them. He stated "I don't do well in places or with crowds." Veteran stated he has difficulty sleeping, some of which is due to sleep apnea, but some of which appears to be related to anxiety. He stated he sometimes has bad dreams about things that happened during his time in the military. Veteran denied problems with energy or appetite, but stated he experiences low motivation, and sometimes experiences depressed mood. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. 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. VA and private treatment records, along with the VA Mental examinations of record, indicate that the Veteran's anxiety disorder was manifested by symptoms associated with a 70 percent rating (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); 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). While the Veteran did experience symptoms contemplated by a 100 percent rating, namely, gross impairment in thought processes or communication, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. In short, 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 100 percent or higher rating are not met and the appeal must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.