Citation Nr: 21076723 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 19-18 651A DATE: December 27, 2021 ORDER A rating in excess of 30 percent for an anxiety disorder prior to November 18, 2020, is denied. A rating in excess of 50 percent for an anxiety disorder with secondary depressive disorder since November 18, 2020, is denied. The appeal of the issue of entitlement to service connection for Meniere's disease and benign paroxysmal positional vertigo with left ear hearing loss and tinnitus is dismissed. FINDINGS OF FACT 1. The Veteran served on active duty from July 1987 to February 1994; he has been 100 percent disabled since January 24, 2017. 2. Prior to November 18, 2020, an anxiety disorder was manifested by subjective complaints of anxiety, sleep impairment, and hypervigilance, but with good family and friend relationships; objective findings included being alert and oriented, exercising good judgment and insight, and thoughts and speech were clear. 3. Since November 18, 2020, an anxiety disorder has been manifested by occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas or total social and occupational impairment. 4. Service connection for Meniere's disease and benign paroxysmal positional vertigo with left ear hearing loss and tinnitus was granted in a May 2021 rating decision. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for an anxiety disorder prior to November 18, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400 (2021). 2. The criteria for a rating in excess of 50 percent for an anxiety disorder with depressive disorder since November 18, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9400 (2021). 3. As the claim of entitlement to service connection for Meniere's disease and benign paroxysmal positional vertigo with left ear hearing loss and tinnitus has been granted in full, the Board has no jurisdiction to adjudicate the merits of the claim at this time. 38 U.S.C. § 7105(d)(5) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2020, the Board remanded the issues for additional development. They now return to the Board for adjudication. Increased Rating for an Anxiety Disorder Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 30 percent rating is warranted for 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 occurring weekly or less often, chronic sleep impairment, and mild memory loss (i.e. forgetting names, directions, or recent events). A 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Prior to November 18, 2020 After a review of the record for the time period prior to November 18, 2020, the Veteran's anxiety disorder most nearly approximates a 30 percent rating, and a higher rating is not warranted. In this regard, the medical evidence reflects that he complained of, and/or manifested symptoms such as anxiety, sleep impairment, military themed dreams, and hypervigilance. Nonetheless, despite the symptoms noted above, the medical evidence also reflects that he was generally functioning satisfactorily throughout the evaluation period. For example, the August 2016 VA examination report noted that the Veteran's daily functioning was quite good in personal, recreational, and professional spheres. Similarly, all of the medical evidence reflects that he was alert and oriented, exercised good judgment and insight, thoughts and speech were clear, and that he was well groomed or neatly dressed. Moreover, no VA examiner during this time period has described the Veteran's occupational and social impairment as more severe than an occupational and social impairment 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). During all examinations, the Veteran reported good family relationships, including with his mother (the relationship was described as "wonderful"), brothers, biological children, and grandchildren. With respect to social relationships, he stated that he had a good friend base and enjoyed an active social life. He reported enjoying interacting with people and teaching them about his life lessons so they could learn from him rather than the hard way. He stated that he would get out of his home every chance he got. Further, he had a full time job that he had performed without difficulty for the past 25 years. As such, the evidence shows no more than mild social impairment. Next, the medical evidence showed that the Veteran consistently denied having any suicidal or homicidal ideation, hallucinations or delusions, or impaired impulse control during the evaluation period. Further, he did not have panic attacks weekly or more often, did not have impaired judgment, impaired abstract thinking, or circumstantial, circumlocutory or stereotyped speech. In sum, the medical evidence shows that any impairment due to an anxiety disorder is compensated for by the current 30 percent rating. While a July 2019 letter from a treating VA psychologist stated that the Veteran was first treated on October 17, 2017, and he was totally socially and occupationally impaired, this statement is undermined by the contemporaneous medical treatment records as well as the VA examination reports. Most notably, the Veteran was successfully employed full time throughout the appeal period and he reported good and supportive social relationships including with family and friends. Moreover, no symptoms were listed by the VA psychologist which would support the conclusion that the Veteran was totally impaired due to his psychiatric disability apart from the notation that the GAF score was 36. Importantly, the June 2019 VA examiner indicated that the GAF score was no longer utilized in diagnosis or treatment. The VA examiner also pointed out that a GAF of 36 indicated (when it was used) the following: GAF of 31-40 according to the DSM IV-TR "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." It was specifically noted by the June 2019 VA examiner that none of the above was consistent with the Veteran's presentation or current level of functioning. Therefore, the July 2019 letter from the VA psychologist is afforded little probative value. Rather, the totality of the medical evidence shows that the Veteran's anxiety disorder is appropriate rated at 30 percent prior to November 18, 2020. A higher rating for this time period is therefore denied. Since November 18, 2020 In January 2021, service connection for depressive disorder was granted and subsumed into the anxiety disorder rating with a single 50 percent evaluation effective November 18, 2020. Since November 18, 2020, a rating in excess of 50 percent is not warranted and the evidence is not approximately evenly balanced on this point. In this regard, the November 2020 VA examination report does not reflect deficiencies in most areas. Specifically, the examiner noted that the anxiety and depressive disorders resulted in occupational and social impairment with reduced reliability and productivity. With regard to family relations, it was noted that the Veteran had been married and divorced twice but he had good relationships with his children and attended their sporting events. While he reported not being outgoing, he also reported participating in horseshoe competitions at times. With regard to work, it was noted that the Veteran worked full time. He reported taking time off work for his vertigo, but not for his psychiatric disabilities. He stated that he did not argue at work and that he was able to communicate and lead. No difficulties with work due to his anxiety or depression were noted. With regard to mood, judgment and thinking, the Veteran had a depressed mood, chronic sleep impairment and disturbances of motivation and mood. It was also noted that he had difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. Although the November 2020 VA examination showed two symptoms which were identified in the 70 percent rating criteria (neglect of personal appearance and hygiene and difficulty in adapting to stressful circumstances (including work or a work like setting), the overall symptomatology for the time period since November 18, 2020, more closely approximates the 50 percent rating and no higher. Importantly, the evidence does not show 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, and inability to establish and maintain effective relationships, or any symptoms like or similar to those. For example, the Veteran was consistently oriented, maintained a full time job (for approximately 27 years with the same employer), had some social/leisure interests, and had a good relationship with his mother, children and grandchildren. Further, the treatment records noted that he had good judgment and insight. In sum, he has generally not shown deficiencies in most areas since November 18, 2020. While a November 2020 VA treatment record noted significant depression, a January 2021 VA treatment record specifically noted that he denied anxiety and depression. Overall, the VA treatment records do not reflect deficiencies in work, family or judgment. As such, the totality of the evidence reflects both that the symptoms and overall level of impairment do not warrant a rating in excess of 50 percent rating since November 18, 2020. The Board has considered the Veteran's lay statements that his service-connected disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's anxiety disorder with depressive disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Service Connection for Meniere's Disease In May 2021, the RO issued a rating decision granting service connection for Meniere's disease and benign paroxysmal positional vertigo with left ear hearing loss and tinnitus. A 100 percent rating was assigned effective January 24, 2017. As the RO granted in full the benefit sought by the Veteran, there is no remaining allegation of error of fact or law for appellate consideration with respect to this claim. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Accordingly, the Board does not have jurisdiction over the appeal and it is dismissed. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.