Citation Nr: A21020037 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 210603-163691 DATE: December 15, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for generalized anxiety disorder (GAD) is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The Veteran's GAD more nearly approximated occupational and social impairment with deficiencies in most areas. Symptoms resulting in total occupational and social impairment are not demonstrated at any time during the period on appeal. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent rating, but no higher, for GAD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 2006 to March 2011. By history, in an October 2020 rating decision, service connection for GAD was granted, and an initial 10 percent rating was assigned, effective August 25, 2020. In March 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) requesting a review of a September 2020 initial rating decision. In March 2021, the agency of original jurisdiction (AOJ) issued a HLR decision, which considered the evidence of record at the time of the initial rating decision. In the March 2021 decision (notice provided in April 2021), the RO granted a higher initial 30 percent rating, effective August 25, 2020. In an April 2021 rating decision, the RO undertook a mandated special review of the file and continued the 30 percent rating for GAD. In June 2021, the Veteran timely appealed the April 2021 decision to the Board and selected the evidence review lane. Accordingly, the Board may consider the evidence of record at the time of the April 2021 decision as well as any evidence submitted by the Veteran or his representative within 90 days of filing the appeal. 38 C.F.R. § 20.303. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Entitlement to an initial rating of 70 percent, but no higher, for generalized anxiety disorder (GAD) The Veteran seeks an initial increased rating for his service-connected GAD, which is rated 30 percent disabling from August 25, 2020. The Veteran contends that he is entitled to a higher rating because his psychiatric symptoms are more severe than contemplated by his currently-assigned rating. For the reasons specified below, the Board finds that an initial rating of 70 percent, but no higher, is warranted. The Veteran's GAD is rated under Diagnostic Code 9400. Pursuant to a General Rating Formula for Mental Disorders, specified in 38 C.F.R. § 4.130, 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 (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is appropriate 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships. A 100 percent rating 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. 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather 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, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating 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). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-V), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14, 308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. See Golden v. Shulkin, 29 Vet. App. 221 (2018). As stated previously, the Veteran's service-connected GAD is rated at 30 percent disabling since August 25, 2020, and he contends that he is entitled to a higher rating because his psychiatric symptoms were more severe during this period than contemplated by the assigned rating. August 2020 VA mental health treatment records indicate that the Veteran called the Veteran's crisis line and reported that his life had become unmanageable. The Veteran stated that he has sleep issues that are triggered by fireworks, stress, economic issues, employment issues, and anger issues. He stated that it was time for him to get help and that he was having trouble finding a job. The Veteran indicated that his marriage was suffering because of his anger issues and his unemployment but overall, it was supportive. He said that he did not currently have suicidal ideation but experienced suicidal indication in the past and attempted suicide four times by overdose between 2013 and 2017. The Veteran stated that he was overwhelmed with his medical, mental, family, economic, and employment issues and wants help before his thoughts cause him to commit physical harm. The Veteran's children were identified as buffers and a safety plan listed video games, cooking, and the Veteran's wife. The Veteran was assessed as a moderate to low risk of suicide. An October 2020 VA examination indicated that the examiner reviewed the Veteran's medical records and conducted an interview. The October 2020 VA examiner indicated that after the Veteran's service he experienced anxiety due to his medical problems and started to feel unhappy. He did not want to spend time with his wife or child and would come into conflict with his wife over his work schedule. The Veteran experienced insomnia, did not feel safe in public, and felt a sense of doom. The Veteran did not like to leave his house and felt anxious when he did, and additionally felt overwhelmed by the noise of large gatherings. The Veteran is reminded of his illness in service when he loses his breath due to anxiety, but does not have recurring memories. The Veteran reported that he experiences his anxiety cyclically, where an event such as a loud noise or a party will "wire" him up and he will not sleep well for days, which will cause fatigue and low desire so he will stay in bed. When is not anxious he works on engines, plays with video games, and spends time with his family. He reported four prior suicide attempts between 2010 and 2018 and indicated that although he currently did not have suicidal ideation, twice a year he starts to have passive thoughts about suicide. The Veteran indicated that when he is acutely anxious he has anger problems and will be gruff to his family. The October 2020 VA examiner indicated that the Veteran was appropriately groomed, had logical speech, and had a congruent affect. The Veteran stated that he cannot work at nearly his full potential because he is tired and a sense that he will not commit to a work situation. The October 2020 VA examiner indicated that the Veteran stated that he rates the current severity of his symptoms and the affects on his work functioning as a 6, with 10 being the best. She related that the Veteran's anxiety is intermittent and not activated very often as long as the Veteran stays at home. The October 2020 VA examiner opined that the Veteran had social and occupational impairment due to mild or transient systems which decreased work efficacy and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. A May 2021 private psychologist indicated that she reviewed the Veteran's claim file and conducted an interview. The Veteran indicated that he has panic attacks where he hyperventilates and has to go into his room and wear noise canceling headphones and isolate. He related that he then becomes depressed and angry, and he stated that he felt like it was a vicious cycle that he cannot interrupt. The Veteran stated that when depressed he does not bathe, brush his teeth, clean, do dishes, or change his clothing. He indicated that he becomes sedentary and is not motivated to do anything. The Veteran indicated that for a week or two each month he is in that space and does not function. The Veteran reported that he has rituals for how he gets up and rituals for how he goes to sleep and keeps a strict schedule to the point where if it is interrupted he gets irritated, and it is hard for him to recover. The Veteran indicated that he overthinks everything and does not take action, he feels paralyzed from being able to make a decision, and constantly has a sense of panic. He related that he has night terrors where he wakes up and feels like he cannot breathe. The Veteran indicated that he had four previous suicide attempts and stated that he was falling back into old suicidal feelings that he used to have. He related that he feels like the world would be better off without him and he is dragging people down and has thinking about taking pills because he does not have a firearm. The Veteran said when he is in his depressive state he wishes that he was gone. The Veteran indicated that he left service in 2011 and has had 10 jobs since then, the longest of which he has held for six months. He stated that he has a lot of anxiety attacks and a hard time being around people, and it takes him a while to build up the courage to leave his house. He stated that he tries not to leave his house if he can avoid it. The Veteran related that he can focus but he cannot retain information and his wife complains about his memory. The May 2021 private psychologist found that the Veteran had a constricted affect, dysphoric mood, excessive anxiety and worry, restlessness or feeling keyed up on or on edge, stereotyped speech, depression, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, sleep disturbances, impairment of short and long term memory, disturbance of motivation and mood, suicidal ideation, obsessive rituals, and neglect of personal appearance. She additionally indicated that the Veteran was competent and able to control his finances. The May 2021 private psychologist found that the Veteran's GAD was chronic and severe and at least as likely as not caused occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking, and mood. She additionally found that the Veteran's GAD has at least as likely as not rendered him unable to secure and follow substantially gainful employment. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected GAD more nearly approximates the criteria for an initial 70 percent rating, but not higher. 38 C.F.R. § 4.7. In making this finding, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assignment of a higher rating. Mauerhan, 16 Vet. App. at 436. The evidence of record shows that the Veteran's GAD has manifested primarily by symptoms such depression, suicidal ideation, anxiety, irritability, anger, neglect of personal appearance, chronic sleep impairment, panic attacks, hypervigilance, avoidant behavior, constricted affect, difficulty in establishing and maintaining effective work and social relationships, memory loss, and disturbances of motivation and mood. This symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. Although the evidence does not show symptomatology of obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant, and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are designed to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Id. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated. However, the Board emphasizes that the symptoms associated with the Veteran's GAD do not meet the criteria for the maximum 100 percent rating. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's GAD. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. While the record indicates that the Veteran is unemployed, the record does not show that he has total occupational impairment. Further, he does not have total social impairment as he spends time with his family. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating. Accordingly, the Board finds that the criteria for an initial 70 percent rating, but not higher, for GAD are met. The Board also finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. In the May 2021 examination report, the private psychologist concluded that the Veteran's service-connected GAD has at least as likely as not rendered him fully unable to successfully secure and follow substantially gainful employment. In Rice v. Shinseki, the U.S. Court of Appeals for Veterans Claims (Court) held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that in this case TDIU is raised by the record, is part and parcel of the increased rating claim, and is properly before the Board. Id. On remand, the AOJ should comply with the duties to notify and assist in connection with the Veteran's TDIU claim. The matter is REMANDED for the following actions: (Continued on the next page) 1. Provide the Veteran appropriate notice in connection with the claim for a TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the AOJ should undertake all further appropriate actions for development of this claim. 2. Adjudicate the issue on appeal. If the benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response before returning the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.