Citation Nr: 21012826 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-23 784 DATE: March 5, 2021 ORDER Entitlement to an initial rating of 70 percent, from June 22, 2004 for unspecified anxiety disorder is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based upon individual unemployability (TDIU) from June 22, 2004 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to Dependents' Educational Assistance (DEA) from June 22, 2004 is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. From the June 22, 2004 effective date of service connection, the evidence is at least evenly balanced as to whether the symptoms and overall impairment caused by the Veteran's anxiety disorder have more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking, and mood. 2. From June 22, 2004, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. 3. The Veteran became permanently and totally disabled for purposes of DEA benefits on June 22, 2004. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial uniform rating of 70 percent for anxiety disorder from the June 22, 2004 effective date of service connection have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.10, 4.130, Diagnostic Code (DC) 9413. 2. From June 22, 2004, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1-4.10, 4.16, 4.25, 4.26. 3. The criteria for Chapter 35 DEA benefits have been met from June 22, 2004. 38 U.S.C. § 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to January 1962. This case is before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from September 2010 and December 2018 rating decisions of the VA Regional Office (RO), which granted service connection for chronic anxiety with an evaluation of 30 percent, effective June 22, 2004, and entitlement to DEA under 38 U.S.C. Chapter 35 with an effective date of September 24, 2015. The Veteran timely appealed these rating decisions. This case has been before the Board numerous times. Notably, in July 2015, the Board found entitlement to TDIU was raised as part of the rating claim and began addressing it as a separate issue. See Rice v. Shinseki, 22 Vet. App. 47 (2009). The Veteran appealed the prior Board decisions denying a higher rating for service-connected anxiety disorder, with the most recent Board decision issued in November 2018, to the U.S. Court of Appeals for Veterans Claims (Court). Most recently, the parties agreed upon an August 2019 Joint Motion for Remand (joint motion), returning this case to the Board. It vacated the portion of the November 2018 Board decision that denied a rating in excess of 50 percent for service-connected anxiety disorder prior to September 24, 2015 and entitlement to a TDIU prior to September 24, 2015. The Joint Motion dismissed the appeal for a rating in excess of 70 percent from July 14, 2014 for service-connected anxiety disorder. Following the November 2018 Board decision, the RO issued a December 2018 rating decision implementing the partially favorable determinations from the November 2018 Board decision and establishing entitlement to DEA from September 24, 2015. The agency of original jurisdiction (AOJ) processed an appeal from the December 2018 rating decision. The rating issues for anxiety disorder and TDIU addressed in the December 2018 rating decision are subject to the appealed portion of the November 2018 Board decision. Thus, these issues are also subject to the August 2019 joint motion even though the AOJ processing these issues as a separate appeal. 38 U.S.C. § 7252. In March 2021, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but one is not necessary because the benefits sought are being granted in full. I. Duty to notify and assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claims are also subject to compliance with the August 2019 joint motion. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The August 2019 joint motion found that the Board did not provide an adequate statement of the reasons and bases for its denial of a rating in excess of 50 percent for service-connected anxiety disorder. Specifically, the November 2018 Board decision did not fully address the October 2016 private evaluation from Dr. S. As explained below, the instant decision results in a grant of the requested benefits. Further discussion of VCAA compliance or prior remand compliance is not needed at this time. II. Initial rating for anxiety disorder Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is service-connected for unspecified anxiety disorder (anxiety disorder), currently rated as 50 percent disabling from June 22, 2004 until July 14, 2014 and 70 percent disability thereafter. 38 C.F.R. § 4.130, Diagnostic Code 9413. Anxiety disorder is rated according to the General Rating Formula for Mental Disorders (General Rating Formula) as discussed below.  When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency 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 evaluating the level of disability from a mental disorder, VA will also 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 this case, the schedular criteria for rating psychiatric disabilities incorporates the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria. See 38 C.F.R. §§ 4.125, 4.130 (2014); 79 Fed. Reg. 149, 45094 (August 4, 2014); 80 Fed. Reg. 53, 14308 (March 19, 2015); October 2014 VA Form 8, Certification of Appeal. As relevant, under the General Rating Formula, a 50 percent rating is assigned when symptoms show 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 assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment.  Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  For the following reasons, the symptoms of Veteran's anxiety disorder warrant a uniform 70 percent initial rating, but no higher, under the General Rating Formula since the effective date of service connection on June 22, 2004. Given the lengthy rating period at issue and favorable dispositions, the Board will summarize the most pertinent evidence. On June 22, 2004, the Veteran filed a service connection claim for epileptic blackouts and seizures. This claim ultimately resulted in a grant of service connection for chronic anxiety disorder with nonepileptic seizures in an August 2010 Board decision. This appeal ensued from the initial 30 percent rating assignment in the September 2010 rating decision implementing the Board’s decision to grant service connection for anxiety disorder. In April 2006, the Veteran had an initial evaluation at the VA Mental Health (MH) clinic. He reported a history of night terrors and poor sleep. He also complained about poor concentration and irritability. He had fluctuating energy levels. He was treated for sleep apnea with a continuous positive airway pressure (CPAP) machine. His primary complaint was lethargy related to sleep difficulty and irritability. For his sleep, he had frequent awakenings and difficulty returning to sleep. He reported depression. He described his irritability as quickly escalating anger and admitted that he yelled and threw objects. He had frequent arguments with others and experienced constant internal anger. He reported occasional auditory hallucinations, described as spoken commands. Mental status examination (MSE) was notable for a depressed and angry mood, restricted affect and auditory hallucinations. The physician (Dr. M.) assessed history of sleep terror disorder and rule out major depressive disorder with psychotic features of auditory hallucinations. In March 2011, Dr. M furnished a letter in support of the claim. He stated that he had treated the Veteran for anxiety since April 2006. He reported that despite consistent treatment, the Veteran continued to experience anxiety and anger attributable to military stressors. The Veteran had difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective work and social relationships. He opined that the Veteran was unemployable due to service-connected anxiety disorder. In June 2011, the Veteran had a VA Mental Disorder examination with a VA psychiatrist. The Veteran reported taking college classes for computer technology over the past three years. He was married and socialized with family and friends. He complained about longstanding sleep disturbances related to “night terrors.” He related marital difficulties and anxiety symptoms to night terrors. He currently took anxiety medication with fair results. He also reported a variable mood and difficulty with concentration in finishing schoolwork. MSE was notable for irritable attitude, constricted affect and depressed mood. The psychiatrist commented that the Veteran was dysphoric without an anxious appearance. Recent memory was mildly impaired. The psychiatrist diagnosed anxiety disorder. He reported that the symptoms were stable and alluded to possible improvement. He also noted that the Veteran had been retired since 2000 but wanted to retrain for part time employment. In July 2014, the Veteran had another VA Mental Disorder examination with a VA psychologist. She diagnosed unspecified anxiety disorder. She cited the Veteran’s symptom reports of anxiety, difficulty concentrating, nightmares three to four times per week, depressed mood and irritability. She noted that the Veteran reported his symptoms as worsening. However, she assessed the Veteran’s symptoms as stable and mild, citing clinical records. Since the June 2011 VA examination, the Veteran continued to reside with his spouse. He had intermittent contact with his adult children. He had martial conflict due to his irritability. He occasionally socialized with friends. He had tried volunteer work but found concentration problems and difficulty with regular attendance precluded continued involvement. The VA psychologist recounted the Veteran’s current treatment regimen. She assessed the pertinent symptoms as depressed mood, anxiety and chronic sleep impairment. Behavioral observations were notable for a depressed mood and occasional passive suicide ideation. In October 2016, Dr. S provided a comprehensive psychological evaluation summarizing the most relevant evidence and presenting his conclusions. He clinically interviewed the Veteran and reviewed the claims folder. He summarized the Veteran’s anxiety treatment history as follows. He found VA treatment records from April 2006 and January 2009 as particularly instructive. The April 2006 VA treatment records confirmed severe psychiatric symptoms, including poor concentration, irritability, nightmares, and even auditory hallucinations, among others. Medication and anger management classes were ineffective. January 2009 VA treatment records noted longstanding anxiety symptoms and nightmares related to military stressors. Then, March 2011 letter from Dr. M. reported that the severity of the Veteran’s anxiety symptoms and nightmares effectively precluded gainful employment. The June 2011 VA psychological examination found stable symptoms and occupational and social impairment consistent with occasional decrease in work efficiency due to sleep problems and anxiety symptoms. Meanwhile, Dr. S, a treating psychiatrist, furnished a July 2014 letter in support of the claim. He confirmed continuing symptoms of depression, irritability, insomnia, and nightmares that significantly affected the Veteran’s occupational and social function. He assessed the Veteran as having a guarded prognosis. Then, a July 2014 VA examination report showed that the Veteran continued treatment. He had recently tried a volunteer project but stopped due to concentration problems and difficulty with regular attendance. He was found to exhibit a depressed mood and experience vague suicidal thoughts due to hopelessness. He believed his psychiatric symptoms had worsened. After consideration of the entire record, Dr. S opined that the Veteran’s service connected anxiety disorder caused occupational and social impairment consistent with deficiencies in most areas throughout the claims period. He recounted the numerous symptoms associated the Veteran’s service-connected anxiety disorder and detailed their impact on the Veteran’s occupational and social function. He indicated that the treating clinicians’ reports and assessments were more accurate than the VA examination reports from June 2011 and July 2014 indicating lesser impairment. He also opined that the Veteran had not been able to work since filing his claims. He noted that the Veteran was terminated from his longstanding job due to poor concentration and focus. These impairments had been consistently present and intertwined with the service-connected anxiety disorder. The above evidence reflects that from June 22, 2004, the Veteran’s service-connected anxiety disorder more nearly approximates the criteria for a 70 percent rating under the General Rating Formula. In reaching this determination, the March 2011 letter from Dr. M and evaluation by Dr. S in October 2016 are highly probative to show that frequency, severity and duration of the Veteran’s anxiety disorder symptom more nearly approximated occupational and social impairment consistent with deficiencies in most areas. Dr. M is a longstanding treating psychiatrist and has direct knowledge of the frequency, severity and duration of the Veteran symptoms. Then, Dr. S conducted a comprehensive clinical interview and medical record review before furnishing his opinions. Although the June 2011 and July 2014 VA examination reports indicate the Veteran’s anxiety disorder produced lesser impairment, their evaluations appear to be heavily premised on a single clinical interview and do not directly address the treating psychiatrist’s March 2011 letter. Then, Dr. S considered both VA examination reports and explained why he disagreed with their severity assessments. For these reasons, the Board does not find the VA examination reports probative to show a lesser degree of impairment than contemplated by the 70 percent rating criteria under the General Rating Formula. As a uniform initial rating of 70 percent was the rating specifically requested by the Veteran, discussion with regard to whether an increased rating higher than 70 percent is warranted for the Veteran's anxiety disorder is unnecessary. The Board notes that the Court has held, that on a claim for a higher initial or increased rating, a claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and thus, such claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In so holding, however, the Court cited the case of Hamilton v. Brown, 4 Vet. App. 528 (1993) for the proposition that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. See AB, 6 Vet. App. at 39. To do so, the Court indicated that a claimant would have to clearly express an intent to limit the appeal to entitlement to a specific disability rating for the service-connected condition. See id. At the March 2021 hearing, the Veteran's representative specifically requested a uniform initial rating of 70 percent for service-connected anxiety disorder with a TDIU award and indicated that this would satisfy the appeal with regard to this claim. Consequently, as the Board is granting the specific benefit requested, it need not address whether an initial rating higher than 70 percent for service-connected anxiety disorder is warranted. III. Entitlement to TDIU prior to September 24, 2015 TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. The Veteran is now service-connected for anxiety disorder with a 70 percent rating from June 22, 2004. From June 22, 2004, he is also service connected for Hashimoto’s disease with 10 percent rating prior to June 14, 2005 and 30 percent thereafter and seizure disorder with a 10 percent rating as well as noncompensable disabilities. His combined rating meets the schedular TDIU rating criteria throughout the claims period. In this regard, the Board notes that, although there is a subsequently filed formal claim for a TDIU, the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial rating for anxiety disorder and therefore the relevant date of claim is June 22, 2004. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The above discussion concerning the evidence and analysis for the anxiety disorder claim above is incorporated by reference. In January 2016, the Veteran submitted VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability (TDIU claim). He reported being unable to work due to his service-connected anxiety disorder. He last worked in 1999 as an engineering technician. His highest educational attainment was two years of college. The Board notes the Veteran submitted another TDIU claim in July 2017, and it includes the same information. As to the non-economic TDIU component of physical capability in Ray, supra, the functional impairment beginning June 22, 2004 from the service-connected anxiety disorder shows occupational impairment affecting some physical occupational tasks. The sleep disturbance symptoms associated with anxiety disorder would impair the Veteran’s ability to perform physical tasks due to fatigue. Ray, 31 Vet. App. at 73. Given the above, the Board finds that from June 22, 2004, the Veteran has some physical limitations due to fatigue associated with service-connected anxiety disorder. As to the non-economic mental capability in Ray, supra., the Veteran’s irritability, depressed mood and impaired concentration attributable to his service-connected anxiety disorder pose mental impairment in completing a wide variety of occupational tasks associated with general labor or administrative work. The March 2011 treating psychiatrist specifically opined that the Veteran had been unable to work due to his service-connected anxiety symptoms. Dr. S’s October 2016 private evaluation essentially concurred with this determination and confirmed that such impairment from anxiety symptoms had been present throughout the claims period. Again, the Board finds these determinations highly probative because of Dr. M’s treating clinician status and intimate knowledge of the Veteran’s symptoms and Dr. S’s comprehensive evaluation and review of the record. Although the June 2011 and July 2014 VA psychiatrist and psychologist reached different conclusion, the Board finds that for the same reasons expressed above their determinations are less persuasive. Given the above, the Board finds that the Veteran has psychiatric limitations due to service-connected anxiety disorder symptoms that significantly impair his ability to secure work consistent with his education and occupational experience. These psychiatric limitations include or are analogous to those outlined by the Court in Ray in determining whether the Veteran can secure and follow a substantially gainful occupation. Ray, 31 Vet. App. at 73. When considering the Veteran’s work and education history and physical and mental impairments due to service-connected anxiety disorder as well as additional service-connected disabilities, the evidence is at least in a state of relative equipoise as to whether the Veteran is unable to secure and follow a substantially gainful occupation within the meaning of the applicable regulation. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"); 38 C.F.R. § 4.16. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran's service-connected disabilities have throughout the appeal period precluded him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from June 22, 2004 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. IV. Entitlement to DEA benefits prior to September 25, 2015 Regarding the earlier effective date for DEA Chapter 35 benefits, DEA benefits are payable to the child, spouse, or surviving spouse of a Veteran if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807 (a). In the December 2018 rating decision, the Veteran was granted basic eligibility to DEA benefits, effective September 24, 2015, the date which he was adjudicated to be eligible for a total (100 percent) disability rating. In light of the current decision, the Veteran's is entitled to a TDIU from June 22, 2004. Therefore, the Veteran has been adjudicated to have permanent and total disability from June 22, 2004, and entitlement to DEA benefits from June 22, 2004 is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.