Citation Nr: 21074786 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-56 254 DATE: December 16, 2021 ORDER A rating in excess of 30 percent for generalized anxiety disorder (GAD) is denied. FINDING OF FACT For the entire appeal period, the Veteran's GAD was manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for GAD have not been 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 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to March 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2016 and May 2018 by a Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. As the Veterans Law Judge who held the March 2021 hearing is no longer employed at the Board and can no longer participate in the appeal, VA offered the Veteran an additional hearing with a different Veterans Law Judge by way of a May 2021 letter. As the Veteran did not respond to the letter, the Board proceeded with review of the appeal and remanded it in July 2021 for additional development. The case now returns for further appellate review. Entitlement to a rating in excess of 30 percent for GAD. 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 veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. 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. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on July 6, 2015, the date VA received the Veteran's increased rating claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Throughout the appeal period, the Veteran's GAD is evaluated as 30 percent disabling pursuant to Diagnostic Code 9400, which provides that such disability is rated under the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In pertinent part, the General Rating Formula provides 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). A 50 percent rating is warranted when there is 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 rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). Turning to the evidence of record, a February 2015 VA treatment record indicates the Veteran experienced symptoms of dreams, cold sweats, and nightmares but that medication was helping him to cope with his stressors. He denied suicidal and homicidal ideations, and the examining clinician found the Veteran had mild to moderate functioning due to pain and other health issues. An August 2015 VA mental health initial evaluation note shows the Veteran sought outpatient treatment when he "almost had a nervous breakdown." He specifically reported symptoms of anger issues, terrible nightmares, and visual and auditory hallucinations. He denied suicidal and homicidal ideations, but the VA clinician found he presented with thought pattern paranoia and anxiety. Still, the Veteran had no problems with activities of daily living and reportedly was trying to be close to his children. However, he was not close to the rest of his family, and he denied any extracurricular activities. In September 2015, he reported recurrent depression and nightmares as well as intrusive thoughts. According to a January 2016 VA treatment record, the Veteran was experiencing symptoms of depression, sadness, worry, anxiety, and frustration, whereas a May 2016 VA treatment record reflects his reports of increased panic attacks. A December 2017 VA treatment indicates he had an anxiety attack and also suffered from depression. Following examination of the Veteran in March 2018, the VA examiner found the Veteran's GAD symptomatology resulted in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. With respect to the Veteran's specific symptoms, the VA examiner attributed a depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, and difficulty in establishing and maintaining effective work and social relationships to his service-connected GAD. As for social impairment, the Veteran resided alone and did not have any friends, but he remained in contact with his family and had a strained relationship with someone in a different state. He tended to isolate and enjoyed sitting on his porch; he had no significant difficulty with activities of daily living. With regard to occupational impairment, the Veteran had recently initiated employment and had been working at a local restaurant three nights per week for the last three months as a food prep and dish cleaner. He reported that he had sought out that employment because retirement was "boring," and he denied any difficulties in relation to employment. At the March 2021 Board hearing, the Veteran testified to having nightmares, insomnia, angry outbursts, a bad temper, and two panic attacks in the last year, with which he was helped by a fellow veteran. When describing his previous part-time work at a restaurant for approximately two and a half years, he stated that everyone had liked him and that he never complained. However, he did not consider them to be friends because he did not feel comfortable having people in his home. Pursuant to the July 2021 Board Remand, the Veteran underwent additional VA examination in August 2021. The Veteran reported being easily irritated and quick to anger, and the VA examiner attributed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, and difficulty in establishing and maintaining effective work and social relationships to his service-connected GAD. At that time, the Veteran lived with his best friend, had relationships with his mother, older sister, and son, and had friends. He also reported working prior to the pandemic, which had been stressful, but that he had been consistent and would like to go back to work if his doctors would clear him to do so. He denied any difficulties with activities of daily living and enjoyed keeping things neat and clean. The VA examiner concluded that the Veteran's GAD was 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 normal routine behavior, self-care and conversation. Upon review of the foregoing, the Board finds the Veteran's GAD was manifested by psychiatric symptomatology resulting in, at most, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks throughout the pendency of the appeal. In this regard, the nature, frequency, duration, and severity of such symptomatology, to include the Veteran's reported panic attacks, hallucinations, and impaired impulse control, does not more nearly approximate occupational and social impairment with reduced reliability and productivity at any time during the appeal. Notably, the Veteran himself reported working consistently on a part-time basis prior to the pandemic, without any difficulty getting along with his co-workers or sustaining employment, and he expressed a desire to return to work, with his only potential deterrence being clearance from his physicians for physical conditions. In addition, although the Veteran denied having any friends in March 2018, the record indicates he has attempted to and maintained relationships with several family members and others throughout the pendency of the appeal. Further, the record consistently indicates the Veteran experienced panic attacks less than once per week, and the evidence does not reflect symptoms of flattened affect, impaired speech, difficulty in understanding complex commands, impairment of long-term memory, impaired judgment or abstract thinking, or disturbances of motivation and mood to support the assignment of a rating in excess of 30 percent pursuant to the General Rating Formula. Moreover, the VA examiners, who considered the totality of the Veteran's psychiatric symptomatology and resulting functional impairment, found that his GAD resulted in, at most, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating under the General Rating Formula. In this regard, the Board affords significant probative value to the VA examiners' determinations as such were based on psychological evaluations of the Veteran during the appeal period and consideration of his own statements of his symptoms in light of the rating criteria. Such evidence, with consideration of the totality of the nature, frequency, severity, and duration of the Veteran's psychiatric symptomatology as demonstrated by the contemporaneous medical evidence of record, indicates his psychiatric symptomatology was not of sufficient severity to result in greater impairment of his occupational or social functioning. Consequently, a rating in excess of 30 percent is not warranted under the General Rating Formula at any time during the appeal period. In reaching such determination, the Board acknowledges the Veteran's belief that his GAD is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected GAD; however, the Board finds that his symptomatology has been stable throughout the appeal. Thus, assigning staged ratings is not warranted. Furthermore, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determinations, the Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for GAD. Thus, the benefit of the doubt doctrine is not applicable, and his rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.