Citation Nr: 21011840 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-22 838 DATE: March 2, 2021 ORDER Entitlement to an increased initial disability rating of 70 percent, but no greater, for anxiety disorder, prior to December 8, 2020, is granted. Entitlement to an initial disability rating higher than 70 percent for anxiety disorder, since December 8, 2020, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to December 8, 2020, the Veteran’s anxiety disorder was manifested by occupational and social impairment with deficiencies in most areas. Total occupational and social impairment was not shown. 2. Since December 8, 2020, the Veteran’s anxiety disorder is manifested by occupational and social impairment with deficiencies in most areas. Total occupational and social impairment is not shown. 3. The evidence of record is at least in equipoise that the Veteran’s combination of service-connected disabilities prevents him from obtaining or maintaining substantial gainful employment. CONCLUSIONS OF LAW 1. Prior to December 8, 2020, the criteria for an increased disability rating of 70 percent, but no greater, for generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. 2. Since December 8, 2020, the criteria for a disability rating of 70 percent for generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. 3. The criteria for a TDIU due to the Veteran’s combination of service-connected disabilities have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the in the United States Navy from April 1966 to March 1968 and from April 1974 to February 1980. In August 2018, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims for an increased rating for anxiety disorder and for TDIU. A May 2019 Order of the Court of Appeals for Veterans Claims (Court) implemented a Joint Motion for Remand (JMR) and returned these matters to the Board. In November 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) to take action consistent with the JMR. In a December 2020 Rating Decision, the granted AOJ granted an increased rating for anxiety disorder to 70 percent, effective December 8, 2020. As this was not a full grant of the benefits sought on appeal and the Veteran has not indicated that his appeal has been withdrawn, his claim remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). There has been substantial compliance with the prior remand directives and theses matter are again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Entitlement to an initial disability rating higher than 50 percent for anxiety disorder prior to December 8, 2020 2. Entitlement to an initial disability rating higher than 70 percent for anxiety disorder since December 8, 2020 The Veteran contends that the severity of his service-connected anxiety disorder warrants ratings in excess of those assigned. The Veteran’s anxiety disorder has been evaluated as 50 percent disabling prior to December 8, 2020 and 70 percent disabling since December 8, 2020, under Diagnostic Code (DC) 9413 and the General Rating Formula for Mental Disorders. 38 C.F.R.§ 4.130, DC 9413. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under DC 9413, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula), 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/or 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 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). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Prior to December 8, 2020 At an August 2013 VA posttraumatic stress disorder (PTSD) examination, the Veteran was diagnosed with anxiety disorder. No other mental disorder was diagnosed. Regarding occupational and social impairment, the VA psychologist opined that he had 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. However, as noted in the JMR, the August 2013 VA examiner did note intermittent inability to maintain minimal personal hygiene. The Veteran was married three times and has six children and numerous grandchildren. He maintained contact with his children weekly. He reported not attending family events that might expose him to unfamiliar crowds. He reported having a good marriage with his current wife, and that they live in a retirement community and participate in shared leisure activities. They had a group of friends with whom they socialize on a regular basis. He reported intrusive memories of his combat experiences, and exhibited anxiety-like behaviors, such as counting things. He also experienced depressive features of sadness from memories of friends who died in combat. The VA psychologist found that the Veteran’s symptoms moderately impacted his occupational functioning. The Veteran last worked as a cook, but stopped working due to a non-service-related back injury. If he were to work today, the psychologist indicated that the Veteran would have a few difficulties attributable to anxiety, including memory difficulty, which he managed by using memory aids, and some interpersonal challenges due to his irritability and tendency to withdraw to avoid any interpersonal conflict. The Veteran underwent another VA psychiatric examination in April 2015. The examiner noted that little had changed since the previous PTSD examination, and that the Veteran remained moderately functionally impaired. She discussed the Veteran’s symptoms, particularly of sleep deprivation, and noted a significant alcohol problem that the Veteran was trying to control. His symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. She also noted that he had ongoing relationships with a very large extended family, was in a stable 21-year marriage, and socialized with friends. The examiner opined that his disability was best characterized as 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. As noted in the JMR, a January 2014 VA co-nursing reassessment treatment record identified interventions utilized that included an intervention for hygiene, which logically suggests some level of difficulty with hygiene. The JMR also discussed a January 2013 VA mental health note that the Veteran had a history of taking off and being gone for weeks at a time. A January 2013 VA treatment record documented that the Veteran has walked away a couple of times and when his wife has found him, he is dirty, confused, and disoriented. The Veteran indicated that he takes off when the stress is too much. After consideration of the evidence of record, the Board finds that, for the period prior to December 8, 2020, the assignment of an initial increased rating of 70 percent, but no greater, is appropriate. The evidence of record indicates that the Veteran’s anxiety disorder affected his ability to function independently, appropriately, and effectively. The Veteran’s “walking away” during episodes of stress demonstrates symptoms of spatial disorientation, neglect of personal appearance and hygiene, and an inability to establish and maintain effective relationships. These episodes also demonstrated impaired impulse control and difficulty in adapting to stressful circumstances. Therefore, a 70 percent disabling evaluation is warranted for this period. The evidence of record does not show that the Veteran’s symptoms produced total occupational and social impairment as to warrant a 100 percent rating. The Veteran has been able to maintain a stable marriage and socialize with friends. The record also does not establish that the Veteran is in persistent danger of hurting himself or others. While the record shows some intermittent inability to perform activities of daily living, or disorientation to time or place, there has also been no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior. There is no evidence of auditory and visual hallucinations. Furthermore, the record does not show memory loss so severe that the Veteran forgets the names of close relatives, his own occupation, or his name. Therefore, as the frequency, severity, and duration of the symptoms for the period under consideration do not rise to the level of total occupational and social impairment, a 100 percent rating is not warranted for this period. Since December 8, 2020 On December 8, 2020, the Veteran was provided with another VA mental examination. The VA examiner diagnosed the Veteran with unspecified anxiety disorder and unspecified depressive disorder. The examiner noted that these two conditions have virtually full symptom overlap, and that they currently maintain, perpetuate, and exacerbate the other and are indistinguishable without engaging in speculation. Therefore, the Board will attribute both the Veteran’s anxiety and depression symptoms to his service-connected mental health disorder. The examiner found the Veteran’s symptoms to include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation or mood, difficulty in adapting to stressful circumstances, and neglect of personal appearance and hygiene. The Veteran reported he has been retired for 10 years. He has a stable relationship with his wife, and that he has friends that he has contact with and goes out with socially. He reported occasional irritability and infrequent panic attacks. The Veteran would stay home isolated to avoid these attacks. The examiner found the Veteran to be alert and oriented, with adequate grooming and hygiene. The Veteran denied any suicidal ideation. The Veteran reported memory issues, including difficulty finding words and losing his train of thought. The examiner concluded that the Veteran’s mental health diagnosis would cause 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. After consideration of the evidence of record, the Board finds that, for the period since December 8, 2020 the assignment of a 70 percent rating is appropriate. The evidence of record indicates that the Veteran experienced symptoms of near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships. Therefore, the Veteran’s symptoms more closely approximate a 70 percent disabling rating during this period. For the period since December 8, 2020 a 100 percent rating is not warranted. The evidence of record does not show that the Veteran’s symptoms produce total social impairment as to warrant a 100 percent rating. The Veteran has been able to maintain relationships with his wife and friends. The record does not establish that the Veteran is in persistent danger of hurting herself or others. There has been no evidence of delusions, gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living, or disorientation to time or place. There is no evidence that the Veteran experiences auditory or visual hallucinations. Furthermore, the record does not show memory loss so severe that the Veteran forgets the names of close relatives, his own occupation, or his name. Therefore, as the frequency, severity, and duration of the symptoms for the period under consideration do not rise to the level of total occupational and social impairment, a 100 percent rating is not warranted for this period. Additional Considerations In reaching this decision, the Board has considered the Veteran’s lay statements regarding the severity of his symptoms. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating higher than those assigned is warranted. Accordingly, the Board finds that the evidence of record weighs against a finding of disability ratings in excess of 70 percent for the period prior to December 8, 2020, and in excess of 70 percent for the period since December 8, 2020. 38 C.F.R. § 4.130. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that the nature and severity of his combination of physical and mental service-connected disabilities has precluded substantially gainful employment, and that he is entitled to a TDIU under 38 C.F.R. § 4.16. Legal Criteria Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU 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 a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As the Veteran has been granted entitlement to a 70 percent rating for anxiety disorder, he meets the criteria to be eligible for a schedular TDIU under 38 C.F.R. § 4.16(a). The Board notes that the Veteran has also been awarded a 60 percent rating for coronary artery disease, a 10 percent rating for tinnitus, and non-compensable (zero percent) ratings for bilateral knee chondromalacia and bilateral hearing loss. The Veteran’s current combined disability rating is 90 percent. At the August 2013 VA mental disorder examination, the Veteran reported having a high school education and one semester of community college. The Veteran served in the Navy as a supply clerk and air traffic controller. After service, the Veteran worked as a cook and did farm work. At the December 2020 VA mental disorder examination, the Veteran reported that he has been retired for 10 years. As discussed above, the record establishes significant occupational limitations due to service-connected mental health disability. The December 2020 VA examiner opined that the Veteran displays the intellectual and concentration ability to perform simple repetitive tasks. He would perform better in predictable and low stimulation environment, including a solitary environment or working from home. At an April 2015 VA heart condition examination, the Veteran’s METs level of 3-5 was found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). The Veteran reported he feels numbness in his legs. The Board finds that there is competent and probative evidence which shows that the Veteran’s anxiety disorder would significantly impact his ability to keep up with the mental demands of a work environment, and his coronary artery disease would preclude him from performing physical labor. The Board therefore finds the evidence to be at least in equipoise that the Veteran’s combination of service-connected disabilities prevents him from being able to maintain any gainful employment. The Board acknowledges that the VA examiners came to different medical opinions regarding the Veteran’s occupational limitations. However, although a medical opinion is probative, it is not dispositive and is not required. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The ultimate responsibility for the determination of occupational limitations is placed with VA adjudicators and not upon a medical examiner. Id. Considering the Veteran’s education and occupational background and assessing the effect of the Veteran’s combination of service-connected disabilities and affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Casey, 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.