Citation Nr: 21006853 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-19 796 DATE: February 5, 2021 ORDER Entitlement to an increased rating of 70 percent, but no higher, for unspecified anxiety disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) at the (s) rate is granted. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his unspecified anxiety disorder was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. His anxiety disorder was not manifested by symptoms resulting in total occupational and social impairment. 2. Affording the Veteran the benefit of the doubt, he was not able to obtain or retain substantially gainful employment due to his service-connected unspecified anxiety disorder. 3. During the appeal period, the Veteran had a single service-connected disability (unspecified anxiety disorder) rated as totally disabling, together with service-connected asthma having a rating of at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for unspecified anxiety disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2020). 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). 3. The criteria for SMC at the statutory housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.350(i) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1963 to February 1966. He appeals a January 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a rating greater than 30 percent for an unspecified anxiety disorder. During the appeal period, the AOJ increased the Veteran’s anxiety disorder rating to 50 percent. See May 2019 rating decision. A Board of Veterans’ Appeals (Board) hearing was held in January 2021. A transcript is of record. Increased Rating Disability ratings are determined by applying a schedule of ratings 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. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Veteran contends his service-connected anxiety disorder is more severe than his 50 percent rating would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9413. Under Diagnostic Code 9413, a 50 percent rating is warranted for 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 effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. 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 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 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 name. Id. When evaluating a mental disorder, the rating agency shall 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). At the Veteran’s first VA examination of the appeal period, the December 2016 VA examiner found the Veteran had symptoms of anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. There, the Veteran also noted having panic attacks once a month. In November 2018, a VA examiner found the Veteran exhibited the same symptoms but also had difficulty adapting to stressful circumstances and establishing and maintaining relationships. An October 2019 VA examiner found the Veteran had a depressed mood. While these examiner’s findings of the Veteran’s symptom picture more closely reflect the criteria for a 50 percent rating, the Board finds a review of the entire medical and lay evidence of record reflects the Veteran’s psychiatric symptoms warrant a 70 percent disability rating, but no higher, throughout the entire appeal period. Socially, the record reflects the Veteran has a good relationship with his wife and three adult children, but he isolates himself from old friends and social settings as much as possible due to his anxiety. See, e.g., August 2016 Dr. F.S. examination report (panic attacks impair “him from socializing and he tried to avoid social situations at all cost”); November 2018 VA examination report (socializing is “quite stressful”); January 2021 Board hearing transcript at 3,7 (“interactions with people, even in the ones that are planned, it’s very easy…to drift into a panic attack;” “avoid other people because that creates anxiety”). The Veteran reported panic attacks once a month and noted his attacks were so infrequent during the appeal period because he is “pretty much resigned to staying at home;” otherwise, his panic attacks would occur at “almost every other [social] encounter.” See January 2021 Board hearing transcript at 4. For example, November 2016 VA treatment records reflect the Veteran had a “panic attack…in an unfamiliar area and [the Veteran] thought he was lost.” The Veteran related he quit his job as a salesman because of a “severe panic attack” and found work with minimal interaction as a FedEx driver. See August 2016 Dr. F.S. examination report. The Veteran also recounted a panic attack while testifying as a character witness for a friend in court. Id. Overall, the record reflects the Veteran’s near-continuous panic and anxiety affects his independent, appropriate and effective function and he has difficulty adapting to stressful circumstances due to his anxiety. Further, the record also suggests the Veteran’s anxiety makes it difficult for the Veteran to establish and maintain relationships other than his immediate family as he isolates himself for fear of panic attacks. The Veteran also reported his anxiety and panic attacks create a sense of self-loathing and the Veteran affirmed he had “death wishes” and was “upset that he was still alive” some mornings. See August 2016 Dr. F.S. examination report; see also November 2018 VA examination report. However, the Veteran regularly denied suicidal intent and even ideation, during the appeal period. See, e.g., November 2016 and November 2019 VA treatment records. Thus, the record reflects the Veteran has suicidal thoughts, but not to the extent he is a persistent danger to himself. Based on the aforementioned, the Board finds the Veteran’s symptom picture more closely approximates social and occupational impairment in most areas, the criteria for a 70 percent rating. The Veteran’s symptom picture does not, however, reflect total social and occupational impairment, the next criteria required for the next highest rating, or 100 percent. As noted above, the Veteran socially isolates himself, but he maintains a good relationship with his immediate family. See December 2016 VA examination report (“good relationship with his wife”). Thus, while the Veteran may be unable to establish effective relationships, the Board finds the Veteran does not exhibit total social impairment as he maintains relationships with his wife and three children. Throughout the appeal period, the Veteran was always oriented and his psychiatric symptoms did not impair his ability to perform activities of daily living (ADLs). See, e.g., August 2016 Dr. F.S. examination report; November 2018 VA examination report; August 2019 VA treatment records (Veteran unable to cook for himself due to stroke, but “able to attend to other ADLs”). Further, VA examiners and Dr. F.S. noted the Veteran had good hygiene and grooming throughout the appeal period. Thus, the preponderance of the evidence does not reflect the Veteran’s psychiatric symptoms manifest the intermittent inability to perform ADLs to the extent of total and social impairment. Importantly, the Veteran does not display other criteria necessary for a 100 percent rating. For example, the Veteran reported memory loss and confusion, but the record does not reflect his memory loss was so severe he forgot his own name or the names of relatives. See, e.g., December 2016 VA examination report (“mild memory loss”); February 2017 VA treatment records (“he will get confused and forget where he is”); September 2017 VA treatment records (“denies worsening in his memory”); August 2019 VA treatment records (“ongoing memory problems”). Also, the record does not reflect the Veteran is a danger to himself or others despite bouts of irritability and suicidal thoughts. Id. Finally, the Veteran was consistently found to be properly oriented and denied any delusions, hallucinations, or gross impairment in thought or communication. Id. In summation, while the Veteran’s symptoms are severe, the record reflects he is not grossly inappropriate or impaired in thought. He is not disoriented or a persistent danger to himself and he is able to perform activities of daily living. Additionally, the record reflects he is able to maintain some relationships, such as those with his wife and children. As such, the Board finds the Veteran’s symptoms greatly impair his social relationships, judgment, work, and mood, but they do not rise to the level of total social or occupational impairment, the criteria required for a 100 percent rating. For the reasons above, the Board grants a 70 percent rating, but no higher, for unspecified anxiety disorder. TDIU The Veteran filed a claim for entitlement to TDIU during the pendency of this appeal. See August 2019 VA Form 21-8940. As such, the Board will consider entitlement to TDIU for the entire appeal period of the Veteran’s increased rating claim for unspecified anxiety disorder. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has met the schedular requirement for entitlement to TDIU as his service-connected unspecified anxiety disorder, pursuant to the order above, is now rated at 70 percent disabling. Therefore, the narrow issue before the Board is whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected anxiety disorder. In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board will consider the following factors: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran served in the Army with the military occupational specialty (MOS) of radio operator. After service, he obtained a bachelor’s degree in Sociology. See August 2016 Dr. F.S. examination report. The record conflicts on whether the Veteran has one completed master’s degree. Id. (“master’s in religious studies…was working on second master’s [degree]”); November 2018 VA examination report (“highest level of education is some graduate work” for a “master’s in Sociology”). However, the record does reflect the Veteran stopped pursuing his master’s degree in the 1980s due to increased anxiety and his inability to give an oral presentation without having a panic attack. Id. The Veteran reported training as an insurance salesman and has financial planning certifications. See August 2016 Dr. F.S. examination report. During the Veteran’s employment in sales, he reported he experienced “panic attacks in crucial situations.” See November 2018 VA examination report. One day in 1992, the Veteran reported a “panic attack while making a sale” that made him quit working in sales. See December 2016 VA examination report. Next, the Veteran worked as a FedEx driver until 2004 when he retired. Id. Mentally, the Veteran’s psychiatric symptoms include anxiety, panic attacks, near-continuous panic effecting independent or effective function, difficulty adapting to stressful circumstances, such as work, and mild memory loss. The Veteran testified that he “avoids other people because that creates anxiety” and he would not be able to work “in a job where [he] had to interact with anybody or there were people around.” See January 2021 Board hearing transcript at 8. The Board finds the Veteran’s testimony credible and corroborated by the evidence of record. As noted above, the Veteran quit his last sales position due to a panic attack. Based on the analysis of the Veteran’s psychiatric symptoms, detailed in the section above, the Board finds the Veteran’s anxiety disorder would prohibit the Veteran from working with people or in a fast paced, stressful profession, such as the Veteran’s prior occupations or any typical labor and office positions. Further, his anxiety symptoms would also prohibit employment in a novel work environment. Finally, the Veteran’s short-term memory loss would also prohibit his ability to maintain employment in many skilled, office positions. The record further reflects the Veteran would not be able to resume his prior occupation as a FedEx driver. For example, the Veteran had a panic attack while driving through an unfamiliar area. See November 2016 VA treatment records. On another occasion, the Veteran’s wife drove him to the August 2016 Dr. F.S. examination and the Veteran explained “he only drives to close-by places.” See August 2016 Dr. F.S. examination report. Overall, the record indicates the Veteran’s anxiety and panic attacks increase in severity in unfamiliar areas and amongst unknown people; hence, the Veteran’s social isolation. As such, the Board finds he would be unable to maintain employment as a FedEx driver, which required him to drive on unfamiliar streets and interact with strangers. Providing the Veteran the benefit of the doubt, the Board finds that the Veteran’s service-connected unspecified anxiety disorder renders him unable to work. The severity of his symptoms, combined with his education and occupational experience, support a conclusion that the Veteran was unable to secure and follow substantially gainful employment during the appeal period. Hence, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, and the claim is granted. See 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.1. SMC The issue of entitlement to SMC at the “statutory housebound” rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record and the Board must consider entitlement to SMC when raised. See Akles v. Derwinski, 1 Vet. App. 118 (1991). VA’s duty to maximize a claimant’s benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). SMC at the housebound rate is payable where a veteran has a single service-connected disability rated at 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Importantly, the Court has determined entitlement to TDIU for a single disability constitutes a 100 percent rating for a single service-connected disability under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 292 (2008). Pursuant to the Order above, the Board has awarded TDIU for the Veteran’s service-connected unspecified anxiety disorder alone and the Veteran’s service-connected asthma was independently ratable at 60 percent during the appeal period. Accordingly, as both elements of entitlement to SMC at the (s) rate have been shown, the Board finds entitlement to SMC at the statutory housebound (s) rate is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, Associate 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.