Citation Nr: 21072781 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 12-04 113 DATE: December 6, 2021 ORDER For the period from October 1, 2008 to November 24, 2019, entitlement to an initial disability rating in excess of 30 percent for an anxiety disorder is denied. REMANDED For the period from October 1, 2008 to August 10, 2017, entitlement to an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee (hereinafter, a left knee disability), is remanded. FINDING OF FACT From October 1, 2008 to November 24, 2019, the severity, frequency, and duration of the Veteran's anxiety disorder symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW From October 1, 2008 to November 24, 2019, the criteria for an initial disability rating in excess of 30 percent for an anxiety disorder are not 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 from July 1988 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, this matter was remanded by Board in February 2015. At that time, the Board remanded the Veterans' claims for service connection for a right ankle disability, tendonitis of the tibialis anterior, and dry eye, as well as his claim for increased initial disability ratings for service-connected sleep apnea, anxiety disorder not otherwise specified, and left knee patellofemoral syndrome. In April 2020, after completing additional development, the RO increased the disability rating for the anxiety disorder from 30 percent to 70 percent effective November 25, 2019 and changed the applicable Diagnostic Code to the code for OCD with MDD. In September 2020, the Board denied a 10 percent disability rating from October 1, 2008 to August 10, 2017, granted a 40 percent disability from August 11, 2017 to November 18, 2019, and denied a disability rating in excess of 10 percent from November 19, 2019 for the Veteran's patellofemoral syndrome of the left knee (left knee disability). The September 2020 Board decision also granted tendonitis of the left tibialis anterior and dry eye syndrome. The September 2020 decision denied the entitlement to a disability rating in excess of 30 percent for the Veteran's anxiety disorder from October 1, 2008 to November 24, 2019 and entitlement to a disability rating in excess of 70 percent for obsessive compulsive disorder with major depressive disorder from November 25, 2019. The Board remanded the Veteran's claim for entitlement to service connection for a right ankle disability. The Board again remanded the Veteran's claim for service connection for a right ankle disability in June 2021. In June 2021, the United States Court of Appeals for Veterans' Claims (Court) pursuant to a joint motion for partial remand (JMPR), vacated the Board's September 2020 decision denying entitlement to a disability rating in excess of 30 percent for anxiety disorder from October 1, 2008 to November 24, 2019 and entitlement to a disability rating in excess of 10 percent for the left knee disability from October 1, 2008 to August 10, 2017. The JMPR noted that the Veteran was not appealing the other staged ratings for the Veteran's left knee disability or the obsessive-compulsive disorder. Thus, the issues now before the Board are entitlement to a disability rating in excess of 30 percent prior to November 24, 2019 for anxiety disorder and entitlement to a disability rating in excess of 10 percent for a left knee disorder prior to August 11, 2017. The RO granted service connection for a right ankle disability in an October 2021 rating decision; as such, that issue is no longer on appeal to the Board. Increased Rating 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the Veteran's favor. 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 Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where 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). 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Increased rating for anxiety prior to November 25, 2019 The Veteran contends his anxiety disorder is more severe than initially rated. As noted in the introduction, the issue before the Board is entitlement to a rating in excess of 30 percent for anxiety prior to November 25, 2019. During that stage, the Veteran's psychiatric condition was evaluated under Diagnostic Code 9413, for anxiety disorder not otherwise specified. As noted, the diagnosis for the Veteran's acquired psychiatric disorder has been recharacterized as obsessive compulsive disorder for the most recent staged rating. However, both Diagnostic Codes are part of the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent evaluation is warranted where the disorder is manifested by 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, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by 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 evaluation is warranted where the disorder is manifested by 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 that is 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; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is a total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. A veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The Veteran underwent a VA examination in May 2010. The examiner noted symptoms including pessimism, moderate feelings of guilt, anxiety with physical symptoms including headaches, palpitations, chest oppression, dizziness, and sighing, as well as chronic insomnia and fatigue, severe weight gain in the past few years, apathy, indecisiveness, loss of interest and desire for usual pleasurable activities, and repeated checking behaviors. The Veteran's mental status examination results were normal. The examiner noted that there were no reports of suicidal ideation, phobic anxiety, or psychotic ideas, perceptions, or disturbances. The results of the May 2010 VA examination are supported by other evidence of record from this portion of the period on appeal. For instance, post-service treatment records indicate that he was receiving intermittent mental health treatment, but that he had relatively modest symptoms. See, e.g., June 2009 PCH Mental Health Outpatient Note (indicating mental status examination results showed normal appearance and attitude, euthymic mood, normal affect, unimpaired thought processes, and an absence of suicidal or homicidal tendencies); April 2009 PCH Mental Health Outpatient Note (noting feelings of sadness with similar mental status examination results); March 2009 PCH Mental Health Outpatient Note (similar mental status examination results); February 2009 PCH Mental Health Outpatient Note (noting low mood and motivation with similar mental status examination results). In sum, although the record indicates that the Veteran suffers from symptoms such as anxiety, the symptoms and psychological signs reported in his post-service treatment notes and other medical records during the period on appeal suggest a relatively modest overall level of social and occupational impairment. There is no competent, credible evidence of record suggesting that the Veteran exhibits symptoms such as flattened affect, impairment of short- and long-term memory, impaired judgment, or impaired abstract thinking. Ultimately, the preponderance of the evidence does not reflect the types of symptoms that are required for a 50 percent rating. The Board considered the May 2010 examination report that noted symptoms of repeated checking behaviors that could be akin to the rating criteria for 70 percent of obsessive rituals which interfere with routine activity. Rituals were limited to checking locks, and ensuring that his work was clear as possible with his co-workers. The May 2010 examiner noted the Veteran had moderate obsessive-compulsive symptoms and the "compulsions are not much time-consuming." The examiner found these compulsions did not seem to qualify for a diagnosis of obsessive-compulsive disorder. The Board finds that prior to November 25, 2019, the Veteran's symptom compulsive behavior of checking locks and ensuring his work was clear although caused some impact to social and occupational function, this symptom did not rise to occupational and social impact in most areas. The compulsions do appear to somewhat affect the Veteran's work and his mood, but there is no indication that this symptom effected judgment or family relations. Further the impact on his work and mood were noted not to be time consuming therefore, the Board does not find that such rituals interfered with routine activity. There is no indication that the level of impact caused by these behaviors prior to November 25, 2019 rise to the level of a 70 percent disability rating. Based on the above, the Board finds that the claim for an initial disability rating in excess of 30 percent prior to November 25, 2019 is denied. REASONS FOR REMAND 1. Increased rating for patellofemoral syndrome of the left knee prior to August 11, 2017 is remanded. The Veteran contends that his left knee is more severe than initially rated prior to August 11, 2017. As noted above, the Court vacated a September 2020 decision denying the Veteran's claim for entitlement to a disability rating in excess of 10 percent from October 1, 2008 to August 10, 2017, based on June 2021 JMPR. The June 2021 JMPR noted that the Board erred when it did not discuss the Veteran's symptoms prior to August 2017, specifically his constant discomfort in his left knee that worsened when he climbed stairs or performed heavy work. Further, the Board failed to discuss that the Veteran experienced swelling when he ran, soreness when he walked, and that he used a brace. Finally, that the Veteran's knee was manipulated for the June 2010 examination and he reportedly could not walk normally for two weeks. Further, the JMPR indicated that the Board erred when it failed to address the inadequacies of the June 2010 VA examination. Specifically, the June 2010 examiner failed to conduct measurements on extensions; failed to analyze functional loss caused by flare-ups, including estimating where on range of motion the Veteran's pain began on flexion or extension during flareups; and did not discuss pain on both active and passive, in weight bearing and nonweight bearing, including providing estimates in terms of range of motion. The Board finds that a remand is required for a retroactive opinion to be obtained. See Chotta v. Peake, 22 Vet. App. 80 (2008). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified clinician regarding the severity of the Veteran's left knee patellofemoral syndrome prior to August 11, 2017. The examiner should be asked to provide a retrospective opinion and comment as to whether the Veteran's extension, active motion, passive motion, and pain with weight-bearing and without weight-bearing and the severity, frequency, and duration of any flare-ups (to include based on all of the evidence of record including the Veteran's statements), and the degree of functional loss during flare-ups can be estimated for the period prior to August 11, 2017. If an examination of the Veteran is necessary to provide the requested opinions, one should be scheduled. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be provided for all expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.