Citation Nr: 21011635 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-18 334 DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for anxiety with depressive disorder is denied. FINDING OF FACT The Veteran’s anxiety with depressive disorder manifests as occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for anxiety with depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from April 1976 to April 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In April 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Entitlement to an initial rating in excess of 70 percent for anxiety with depressive disorder The Veteran is appealing the October 2012 assignment of a 70 percent disability rating for anxiety with depressive disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Anxiety with depressive disorder is rated under Code 9413 and the General Rating Formula for Mental Disorders, which provide the following criteria: 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); and/or 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9413. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran 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 (Fed. Cir. 2013). Furthermore, 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. 38 C.F.R. § 4.126. Turning to the evidence, in a May 2012 VA mental health consult, the Veteran reported insomnia and said that he attempted suicide by overdose in the mid-1980s. The Veteran reported feeling blue, panicky at times, anhedonic and exhausted due to the constant ringing in his ears. He reported having a good relationship with his wife. On examination, the Veteran was cooperative with good eye contact, and appropriately dressed and groomed. His psychomotor activity was somewhat slow and his speech was normally productive but very low in tone. The Veteran’s mood was dysphoric with a very restricted affect and he did not smile. His thought process was logical and goal-directed with no delusions, hallucinations, or obsessions or compulsions, and the Veteran denied any suicidal ideations. Cognitively, his abstraction, insight, and judgment were good and his estimated intelligence was average. The psychologist diagnosed generalized anxiety disorder, depressive disorder NOS, and insomnia. An August 2012 letter from the Veteran stated that his tinnitus was causing him to have anxiety, depression, and loss of sleep. The Veteran underwent a VA examination for mental disorders in September 2012. The examiner diagnosed anxiety disorder, NOS, and depressive disorder, NOS. The examiner found that the Veteran’s condition resulted in 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. The Veteran had been married for sixteen years and lived with his wife. He was not employed at the time of the examination and he was receiving mental health treatment through the VA. The Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, and spatial disorientation. The Veteran reported memory problems for the past seven years that had been getting worse, and anxiety, depression, difficulty sleeping, and worsening panic attacks. The Veteran’s cognitive functioning was normal except an impairment in short-term memory and decreased concentration. He was oriented to person, place, time, and situation, with euthymic mood and flat affect. He was tearful throughout the examination, alert, cooperative, and tracking the conversation well. The Veteran’s thought processes were concrete and his speech normal and he was appropriately groomed. The Veteran denied suicidal and homicidal ideations and auditory or visual hallucinations. In January 2013, a private physician wrote that the Veteran had a flat mood and affect and denied suicidal ideation but thinks about death at least twice a week. The Veteran said that his tinnitus was challenging and that he felt hopeless and helpless as a result. In April 2013, the Veteran wrote to VA that he had depression, anxiety, difficulty sleeping, and that he was hearing voices telling him to kill himself. The Veteran checked in to a VA inpatient mental health facility in June 2014 and was discharged in July. He had been admitted due to suicidal ideation. The provider indicated that when the Veteran was admitted he was neatly groomed with a restricted affect. His verbal output was limited but he responded appropriately to direct questions. His speech was fluent, not pressured. He was alert and oriented to person, place, time, and situation, but was on the verge of tears as he told of his past history of suicide attempts in the 1980s by overdose. He denied any homicidal ideation or auditory or visual hallucinations and did not appear to be responding to internal stimuli. The doctor stated that the Veteran’s suicidal ideations resolved soon after he arrived at the inpatient ward as he found great relief in the controlled environment. He had increased anxiety when discharge was discussed because he feared that the gains achieved during inpatient treatment would be lost when he went home. He then discussed with his wife his suicidal ideation and a plan to remove firearms from their home as a protective measure. At the time of his discharge he was alert, oriented to person, time, and place, and his mood was euthymic with no active suicidal ideations, psychotic symptoms, or homicidal ideations. The Veteran underwent another VA examination in March 2015. The examiner diagnosed an unspecified anxiety disorder and major depressive disorder with psychotic features. The examiner found that the Veteran’s disability manifested as occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had a nervous breakdown in 2012 and that is why he had to stop working. The Veteran reported hearing voices and having suicidal ideations, memory problems, difficulty sleeping, feelings of depression, and panic attacks. He reported that he usually hears the voices at night and when he is trying to sleep. The examiner listed the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and persistent delusions or hallucinations. The Veteran’s cognitive functioning was within normal limits but with short-term memory impairment and decreased concentration, and he was oriented to person, place, time, and situation. His mood was depressed with a flat affect. The Veteran was alert and cooperative and tracked the conversation well. He had concrete thought processes and was focused on responding to questions. His eye contact and speech were within normal limits, and the Veteran was appropriately groomed and denied auditory or visual hallucinations. In February 2016, the Veteran was continuing his treatment with VA. A mental health outpatient treatment note stated that the Veteran was alert and oriented and that his anxious and depressed mood was continuing. The note said that the medications were providing some relief. The Veteran had an appropriate affect and his thinking was goal-directed. He had no suicidal or homicidal thoughts but he had continuing paranoia and auditory and visual hallucinations a few times weekly. The Veteran said that he slept six hours each night. A May 2018 VA mental health outpatient treatment plan note stated that the Veteran reported a long period of anxiety and depression due to his tinnitus and said that his symptoms had not changed. The Veteran was still living with his wife. The Veteran was cooperative, made good eye contact and was appropriately dressed and groomed. His psychomotor activity was somewhat slowed and his speech was normally productive but very low in tone. The Veteran’s mood was dysphoric with a very restricted affect and his thoughts were logical and goal-directed with no delusions, obsessions, or compulsions. The Veteran denied any suicidal ideation. In June 2018, the Veteran’s wife wrote to VA, stating that the Veteran was subject to emotional distress in restaurants and around groups of people. She said that the Veteran was also irritable, easily agitated, and had mood swings. A July 2018 VA mental health outpatient treatment note stated that the Veteran was continuing to use medication for his psychiatric condition, and he reported good symptom control. The Veteran was alert and oriented to person, place, time, and situation, and casually dressed with appropriate hygiene and grooming. The Veteran actively engaged in the interview and made appropriate eye contact. His affect was restricted, his speech slow and at a low volume, and his thought process was linear, logical, and goal directed. The Veteran denied any auditory or visual hallucinations or suicidal or homicidal ideations. His judgment was fair and his insight was fair to limited. In October 2018, the Veteran testified before the Board. He said that his anxiety has worsened since his last examination. He reported panic attacks, fear of public places, and nervousness, and said that sometimes he forgets the names of relatives outside his immediate family. The Veteran said that he has seen a VA psychologist on a monthly basis since 2014 and that he suffers from depression and mood swings. The Veteran said that he had been fired from his employment as a truck driver due to his having panic attacks that resulted in accidents. On September 2020 VA examination, the Veteran reported experiencing panic attacks in the past but did not recall the last time he had such an attack. The examiner stated that the Veteran had occupational and social impairment with 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. The Veteran is still living with his wife of 24 years and he denied involvement in social or recreational activities and said that he spends most of his time at home. His mom had died suddenly in March 2020 and this loss had intensified his feelings of sadness. His employment situation had not changed and he said that he continued to receive mental health treatment at the VA medical center, including oral medications. The Veteran said that the medicines help with nervousness and depression but the feelings have remained prevalent since their onset. The Veteran’s symptoms included depressed mood, anxiety, impaired abstract thinking, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances such as work or a work-like setting. The Veteran was casually dressed and his grooming was adequate. He appeared to be an adequate historian and demonstrated adequate effort when conducting performance-related tasks. The Veteran said that he completes his personal hygiene independently, takes his medications and prepares meals independently and shops independently only in smaller stores because the crowds in large retail stores may trigger panic attacks. The Veteran also performs household chores himself. He was oriented to person, place, time, and situation, and his speech was normal in its volume, rate, and tone. The Veteran said that he felt lightheaded and dizzy but was otherwise ok. His insight was fair and his remote memory was adequate but his recent memory was limited. The Veteran’s attention was adequate and he counted backwards from 20 and demonstrated the ability to add and subtract simple mathematical equations. The Veteran demonstrated average intelligence and fair judgment, and his thought content was logical and goal-directed. He denied currently experiencing auditory or visual hallucinations and did not appear to be responding to internal stimuli during the examination. He also denied experiencing suicidal ideation, plan, or intent at the time and the examiner indicated that there were no overt indications of imminent risk of harm to self or others. The Veteran’s disability picture does not reflect impairment that more nearly approximates the frequency, duration, and severity of total social and occupational impairment at any time during the appeal period. In an April 2019 decision, the Board found the Veteran was entitled to a total disability due to individual unemployability due to service-connected disabilities (TDIU), which was implemented by the RO in an April 2019 rating decision, with an effective date of May 24, 2012. Thus, the record supports that the Veteran has experienced total occupational impairment throughout the period on appeal particularly due to his psychiatric disorder. In order for a higher 100 percent rating to be awarded for his psychiatric disorder, the evidence must more nearly approximate that the Veteran has also experienced total social impairment. A preponderance of the evidence is against such a finding. The three VA examination reports and other medical evidence reflect a number of symptoms. Among these, symptoms consistent with a 30 percent rating included depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. Symptoms consistent with a 50 percent rating included flattened affect, panic attacks more than once a week, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Symptoms consistent with a 70 percent rating included suicidal ideation, difficulty in adapting to stressful circumstances, including work or a work-like setting, spatial disorientation, and inability to establish and maintain effective relationships. The one symptom consistent with a 100 percent rating was persistent delusions or hallucinations, identified in the March 2015 VA examination only. With consideration of the frequency, severity, and duration of these symptoms, the Board finds that the Veteran’s overall impairment most nearly approximates occupational and social impairment with deficiencies in most areas, which is in line with his currently assigned 70 percent rating. Although the Veteran reported that he had auditory hallucinations between April 2013 and February 2016, such hallucinations were only noted to be persistent on the March 2015 VA examination. At that examination, the Veteran reported that the hallucinations mainly occurred at night and when he was trying to fall asleep. During February 2016 VA treatment, the Veteran reported experiencing hallucinations a few times a week. Other VA treatment records and the September 2012 and September 2020 VA examination reports reflect that the Veteran denied experiencing hallucinations, including when the Veteran was hospitalized for psychiatric treatment in 2014, when he denied experiencing hallucinations and the treating provider indicated that he did not appear to be responding to internal stimuli. Therefore, the Board concludes that the frequency, duration, and severity of the hallucinations the Veteran has experienced during the period on appeal have not more nearly approximated total social impairment. The record also reflects that the Veteran has experienced suicidal ideation, including being hospitalized due to such ideation in June 2014. Although this symptom has represented a deficiency in most areas, the frequency, duration, and severity of the symptom has not been shown to result in him being a persistent danger to himself or resulting in total social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Although the Veteran was hospitalized in June 2014 due to suicidal ideation, he took protective measures by admitting himself to the hospital due to his ideation and the treating provider indicated that his suicidal ideation resolved soon after his admission. Additionally, the discharge summary reflects that the Veteran discussed his suicidal ideations with his wife during his hospitalization and that protective measures, including removing firearms, were taken prior to his return home. The January 2013 private record reflects that the Veteran thought about suicide twice a week and the March 2015 VA examination report indicated the Veteran experienced suicidal ideation. Otherwise, the Veteran has denied suicidal ideation, including on September 2020 VA examination and during February 2016 and July 2018 VA treatment. Therefore, the Board finds that the frequency, duration, and severity of the Veteran’s suicidal ideation has not resulted in him being a persistent danger to himself. Furthermore, the Veteran remains married to his wife of more than 24 years and there is no evidence of any periods of separation or estrangement. Although the Veteran has denied having social activities outside of the home, the Veteran is able to perform activities of daily living such as maintaining personal hygiene and there is no indication of violent thoughts or actions towards others that would reflect him being a persistent danger to others. The record also shows no gross impairment in thought processes or communication or grossly inappropriate behavior. In sum, the preponderance of the evidence is against a finding that the frequency, duration, and severity of the Veteran's symptoms, including hallucinations and suicidal ideation, more nearly approximates the criteria for a 100 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a disability rating in excess of 70 percent for anxiety with depressive disorder is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.