Citation Nr: 21013958 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-04 443 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 30 percent before June 10, 2020 and 50 percent beginning June 10, 2020, for panic disorder, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. Before June 10, 2020, the Veteran’s panic disorder more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks; occupational and social impairment with reduced reliability and productivity has not been demonstrated. 2. Beginning June 10, 2020, the Veteran’s panic disorder more nearly approximated occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been demonstrated. 3. The Veteran’s service-connected disabilities have not precluded him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent before June 10, 2020 and 50 percent beginning June 10, 2020, for panic disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9412. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1970 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in September 2018 and March 2020 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).  1. Entitlement to a rating in excess of 30 percent before June 10, 2020 and 50 percent beginning June 10, 2020, for panic disorder. The Veteran seeks a rating in excess of 30 percent before June 10, 2020 and 50 percent after June 10, 2020 for his panic disorder. The appeal period before the Board begins on July 13, 2009, one year before to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the reasons that follow, the Board finds that a higher rating is not warranted. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.  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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s panic disorder has been rated at 30 percent before June 10, 2020 and 50 percent after June 10, 2020, under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9412. Under the General Rating Formula, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more often 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. Id. A 70 percent rating is warranted when there is 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 when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Id. at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Id. at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Turning to the evidence of record, the Veteran underwent a psychiatric VA examination in December 2010. With regards to the Veteran’s social functioning, he reported that he has been married for 28 years and has 3 children. He reported having a good relationship with his wife and a close relationship with his children. He also reported having a good relationship with his siblings. As for occupational impairment, the Veteran reported working for the same employer for 28 years since his separation from active duty. He reported having a good relationship with his supervisor and his co-workers. The examiner noted a that the Veteran is currently self-employed. During the examination, the Veteran’s primary complaints were panic attacks, depression and excessive worrying. He reported that the symptoms are constant, continuous, or ongoing and affect his daily functioning resulting in a guarded behavior. The Veteran denied having trouble sleeping or any history of violent behavior, or suicidal ideations. The examiner remarked that the Veteran could manage benefit payments in his own best interest. Further, he had difficulty establishing and maintaining effective work/school and social relationships and difficulty understanding complex commands because he could not multitask. This, along with mild memory loss, made it difficult to understand or carry out complex commands. Regarding the symptoms that applied to his panic disorder, the examiner found the following were present: anxiety, depressed mood, insomnia and chronic fatigue, panic attacks that occur less than once a week, suspiciousness, difficulty establishing and maintaining effective work and social relationships, difficulty understanding complex commands due to inability to multitask, and mild memory loss. His appearance, hygiene and behavior were appropriate. He maintained good eye contact during the exam and his speech was within normal limits. The Veteran’s thought processes were appropriate, and he was able to understand directions. No delusions, history of hallucinations or impaired judgement were noted. He presented no suicidal or homicidal ideations. The examiner concluded that the Veteran’s symptoms are mild or transient but cause occupational and social impairment with decrease in work efficiency and occupational tasks only during periods of significant stress. The Veteran underwent another psychiatric VA examination in August 2012. The Veteran reported having a good relationship with his wife and his children. He reported experiencing significant distress due to his inability to maintain a job. The examiner noted that the Veteran’s panic disorder manifests with the following symptoms: depressed mood, anxiety, panic attacks that occur weekly or less often, and mild memory loss, such as forgetting names, directions or recent events. The examiner concluded that the Veteran’s panic disorder results 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. Subsequently, the Veteran underwent a psychiatric VA examination in May 2016. The Veteran reported having a good relationship with his wife of 34 years and his children. He reported working as a store clerk at a military base and enjoying his job. The Veteran reported continuous anxiety symptoms, taking medication and participating in cognitive behavioral therapy. During the examination, the examiner noted the following symptoms: anxiety, panic attacks that occur weekly or less often, mild memory loss, such as forgetting names, directions or recent events, and difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner observed that the Veteran was fully oriented. He was pleasant and engaged in the conversation. His mood was anxious, and his affect was congruent. He was very detail-oriented, and his thought processes were goal-directed. The Veteran exhibited no evidence of psychosis. His judgment and insight were good. He denied any suicidal or homicidal ideations. The examiner concluded that the Veteran’s panic disorder manifests with 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. Pursuant to March 2020 Board remand, the Board found that a new VA examination is necessary to determine the current level of severity of the Veteran’s panic disorder. The Veteran underwent his most recent psychiatric VA examination in June 2020. During the examination, the Veteran reported being married and living with his wife and 2 out of his 3 children. He reported working as a store clerk at a military base for the last 7 years. The examiner attributed the following symptoms to the Veteran’s panic disorder: anxiety, panic attacks more than once a week, mild memory loss, such as forgetting names, directions or recent events, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was neatly and casually groomed. He made good eye contact and he was generally cooperative. His speech was normal. The Veteran exhibited no evidence of obvious psychomotor agitation or retardation. His thought processes were coherent and organized. The examiner noted no evidence of delusions or hallucinations. The Veteran was alert and oriented to time, place, person and purpose. His insight and judgement were intact. The examiner concluded that the Veteran’s symptoms result in occupational and social impairment with reduced reliability and productivity. VA and private treatment records during the period on appeal, are generally consistent with the symptoms endorsed by the Veteran during the VA examinations. The records during that time frame show that the Veteran appeared well-groomed and appropriately dressed. See e.g. September 2012, November 2014 and October 2018 VA treatment records; also see December 2017-October 2018 private treatment records. The Veteran had good insight, cooperative attitude and logical thought process. He was oriented to time, place, and person. The Veteran’s speech was within normal range. He presented no evidence of hallucinations or lack of judgment. The Veteran reported no suicidal or homicidal ideations. See July 2019 VA treatment record. As to social functioning, the Veteran reported having some family issues that impacted his anxiety level, but he has had a good relationship with his wife and his children. In terms of occupational functioning, the Veteran reported being satisfactorily employed, working at a military base approximately 35 hours per week. He also reported receiving a promotion. In light of the foregoing, the Board finds that the Veteran’s panic disorder has been properly evaluated during the appeal period. First, the Board finds that, before June 10, 2020, a rating in excess of 30 percent for panic disorder is not warranted. In this regard, the Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 30 percent at any time, and the evidence is not approximately evenly balanced. Throughout the appeal period, the Veteran was alert, well oriented, and well groomed. Speech was normal and he showed no psychotic symptoms. Significantly, the Veteran did not exhibit difficulty in understanding complex commands; panic attacks more often than once a week; impaired judgment; impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. The Board acknowledges the Veteran’s symptoms of mild memory loss. However, the evidence of record does not show that his symptoms resulted in impairment of short and long-term memory, as that contemplated by the 50 percent criteria. The Board also acknowledges the June 2012 statement from Dr. P.D. noting that the Veteran continues to have episodes of anxiety and panic attacks with some insomnia and a reported increase in his symptomatology since 2010. However, the Board points out that these symptoms have already been contemplated by the 30 percent rating criteria. The evidence of record also does not show that the Veteran experienced panic attacks more than once a week before his June 10, 2020 VA examination. In terms of social impairment, the Veteran has consistently reported having a good relationship with his family. He also consistently reported being involved in his children’s lives and having a positive relationship with his siblings. The Veteran did not appear to have mild or moderate difficulty in establishing and maintaining effective relationships before June 10, 2020. As to occupational impairment, it is acknowledged that the Veteran reports experiencing panic attacks, depression and excessive worrying/anxiety. Nonetheless, the Veteran’s disability picture overall consistently shows symptoms more nearly approximating the assigned 30 percent rating. Although the Veteran reports that his symptoms affect his functioning, the evidence does not demonstrate significant occupational impairment due solely to his panic disorder symptoms. He also consistently reported having a good relationship with his supervisor and co-workers and enjoying his job. Additionally, the VA examiners concluded that the Veteran’s symptoms are mild or transient with only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA opinions are considered competent and highly probative as the examiners are skilled to render such assessments, based on the review of the claims file and conducted interviews and evaluations of the Veteran. The Board further finds that beginning June 10, 2020, a higher rating for panic disorder is not warranted. The Veteran’s symptoms have not more nearly approximated the criteria for a rating in excess of 50 percent during that timeframe, and the evidence is not evenly balanced. Significantly, the Veteran’s panic disorder did not manifest with symptoms such 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; or neglect of personal appearance and hygiene. The Board acknowledges that the Veteran’s panic disorder at times results in a difficulty with adapting to stressful circumstances or an inability to establish and maintain effective relationships. However, the evidence of record shows that the Veteran has been able to maintain satisfactory employment throughout the appeal period. He also has been able to maintain a good relationship with his wife and children. Most significantly, the June 2020 VA examiner did not find that the Veteran’s symptoms result in occupational and social impairment with deficiencies in most areas. Rather, the examiner found that the Veteran’s panic disorder manifests in occupational and social impairment with reduced reliability and productivity. As such, a rating in excess of 50 percent is not warranted. In making the determination in this case, the Board acknowledges the Veteran’s belief that his panic disorder symptoms are more severe than the current disability ratings reflect. The Board also acknowledges the arguments of the Veteran’s representative, asserting that according to the Veteran’s wife his condition is more severe and manifests with symptoms such as continuous panic attacks, angry outbursts, trouble sleeping, and inability to maintain employment. While the Board recognizes that the Veteran and his wife are competent to provide statements regarding his observable symptomatology, neither are competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own or his wife’s reports regarding the severity of such condition. In addition, the evidence of record shows that the Veteran has generally been able to successfully maintain employment with the same employer throughout the period on appeal. The Board also notes the veteran’s use of medication to control his disability. The Board is permitted to take the ameliorative impact of the Veteran’s medication into account because the use of medication is contemplated by the rating criteria for mental disorders. Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board has also considered whether additional staged ratings are appropriate for the Veteran’s service-connected panic disorder; however, such disability has remained stable throughout each period on appeal. Therefore, assigning further staged ratings for such disability is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that a rating in excess of 30 percent before June 10, 2020, and in excess of 50 percent from June 10, 2020, for panic disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thus, the claim is denied. 2. Entitlement to a TDIU is denied. A claim for TDIU is raised by the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). For the reasons that follow, the Board finds that the Veteran’s service-connected disabilities do not render him unable to obtain or maintain a substantially gainful occupation. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, 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); also see Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). Additionally, entitlement to a TDIU is based on an individual’s particular circumstances.  38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019).  Thus, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.   The phrase “unable to secure and follow a substantially gainful occupation” in 4.16 has both an economic and a noneconomic component.  Ray, supra.  The economic component means an occupation earning more than marginal income outside of a protected environment. Id.  The noneconomic component concerns whether the Veteran is able to “secure or follow” gainful employment.  Id.  In determining whether a Veteran can secure and follow a substantially gainful occupation, in addition to the Veteran’s history, education, skill, and training, the Board should consider whether he or she “has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required” to work in a substantially gainful occupation, and “whether the Veteran has the mental ability to perform the activities required” to work in a substantially gainful occupation.  Id.    Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).     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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).    In pertinent part, the Veteran is service-connected for: (1) panic disorder, rated 30 percent from July 13, 2010 and 50 percent from June 10, 2020; (2) bilateral hearing loss, rated noncompensable from October 12, 2012 and 20 percent from March 28, 2020; and (3) tinnitus, rated 10 percent from October 12, 2012. The Veteran’s combined evaluation is 30 percent from July 13, 2010, 40 percent from October 12, 2012, 50 percent from March 28, 2020, and 60 percent from June 10, 2020. Thus, the Veteran does not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16 (a). When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the Board finds that a referral to the Director of VA Compensation and Pension Services is not proper as the evidence of record does not show that the Veteran is unemployable by a reason of service-connected disabilities. In this regard, the Board notes that the Veteran consistently reported being gainfully employed with the same employer throughout the appeal period. As noted, the Veteran reported working at a military base approximately 35 hours per week. He also reported receiving a promotion. In addition, the Veteran submitted a March 2020 statement, clarifying that his son, not him, is unable to secure and follow a substantially gainful employment. The Board also notes that the January 2020 statement from a private doctor referenced in the March 2020 Board remand is regarding the Veteran’s son, not the Veteran. As such, the evidence of record does not show that the Veteran is unemployable by a reason of service-connected disabilities and a referral to the Director of VA Compensation and Pension Services is not warranted. The Board notes that the Veteran’s representative has alluded that the Veteran’s 35-hour work week may be considered marginal employment and “shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16 (a). Nonetheless, the record does not demonstrate, that he is limited to marginal employment. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). In fact, while the record indicates that he holds a Bachelor’s degree, worked in Real Estate for over 28 years, and has been “satisfactorily employed” at a military base for many years, the probative evidence of record is absent any lay or medical evidence showing that his service-connected disabilities limit him to marginal employment. Thus, this argument must fail. In sum, the Veteran does not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16 (a) and extraschedular consideration under 38 C.F.R. § 4.16 (b) is not warranted. There is no doubt to be resolved; the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Thus, the claim is denied. N. Stevens Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.