Citation Nr: 21014604 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-01 513 DATE: March 15, 2021 ORDER For the appeal period prior to January 28, 2020, a rating of 50 percent, but no higher, for anxiety disorder is granted. For the appeal period beginning January 28, 2020, a rating in excess of 50 percent for anxiety disorder is denied. FINDINGS OF FACT 1. Throughout the entire rating period, the Veteran’s anxiety disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational task. 2. The Veteran’s anxiety disorder does not more nearly approximates occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. For the appeal period prior to January 28, 2020, the criteria for a disability rating of 50 percent, but no higher, for anxiety disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413 (2020). 2. For the appeal period beginning January 28, 2020, the criteria for a disability rating in excess of 50 percent for anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1995 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in September 2019, when it was remanded for further development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c) (2020). 38 U.S.C. § 7107(a)(2) (2012). Anxiety Disorder Disability Rating—Laws and Analysis The Veteran seeks an increased rating for his anxiety disorder which he asserts is worse than currently rated. The Veteran was initially granted service connection for anxiety disorder not otherwise specified, claimed as post-traumatic stress disorder in an April 2013 rating decision and assigned a 30 percent disability rating under Diagnostic Code 9413. Thereafter, the Veteran timely appealed that decision contending his disability should be rated higher than the assigned 30 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s anxiety disorder is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9413. When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In relevant part, the rating criteria are as follows: A rating of 30 percent is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally performing 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, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent is assigned 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-term 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 rating of 70 percent is assigned 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 worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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. A September 2011 letter from the Veteran’s private physician, Dr. H. K., notes that the Veteran reported that he has experienced chronic high anxiety level for many years. He reported feeling depressed, would cry occasionally, decreased level of energy, insomnia, recurring nightmares and decreased sexual activity. The Veteran underwent a VA examination in January 2013. The examiner noted that the Veteran did not report symptoms that met the criteria for a diagnosis of PTSD, and his reported symptom of anxiety appears to be best accounted for by a diagnosis of anxiety disorder, not otherwise specified. The Veteran reported that he has been married 3 times and has 3 grown children as well as 10 grandchildren. He reported maintaining occasional contact with these relatives. He indicated that his current marriage is satisfying and that his is involved in a variety of activities with his wife, including walking, going to the gym, and socializing with friends. The examiner indicated that the Veteran has depressed mood, anxiety, panic attacks that occur weekly or less often, circumstantial, circumlocutory or stereotyped speech. The examiner further indicated that the Veteran was capable of managing his own financial affairs. The examiner concluded that the Veteran’s anxiety disorder was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran submitted a June 2016 disability benefit questionnaire from his private physician, Dr. H.K. Dr. H.K. indicated that symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, difficulty adapting to stressful circumstances, including work or a work like setting. Dr. H.K. concluded that the Veteran’s condition was manifested by occupational and social impairment with reduced reliability and productivity. In mental status evaluations between October 2011 and January 2020, the Veteran primarily endorsed symptoms of anxiety, panic attacks, feeling depressed, insomnia, recurring nightmares and decreased sexual activity. He was consistently described as seasonably dressed and well groomed, cooperative, and alert and oriented in all spheres. There was no documented evidence of delusions, hallucinations, or suicidal or homicidal ideations and the Veteran’s concentration was consistently described as good with good judgment and fair insight. The Veteran was afforded another examination in January 2020. He reported that he spends most of his time reading, paddleboard surfing, traveling / snowbird traveling, exercising. He walks with his wife about 3 to 4 miles at a times, couple of days a week. He attends church every Sunday. He reported that he is an active member of a Condo Association. He reported that he has 3 to 4 close friends that he contacts every 2 or 3 months and has contact with close family members including children and sisters. He denied any current significant issue regarding establishing and maintaining friendships. The examiner notes the Veteran’s symptoms as depressed mood, anxiety, panic attacks more than once a week. Chronic sleep impairment and difficulty in adapting to stressful circumstances, including work or worklike setting. The examiner notes that Veteran demonstrated relaxed motor activity and was cooperative during the examination. Rapport was easily established. The Veteran's speech and volume was at a normal rate and his attention/concentration was intact. The Veteran maintained appropriate eye contact during the examination. His affect was broad, and mood was slightly depressed. The Veteran demonstrated average to above average intellectual functioning. The examiner indicates that the Veteran's thought processes were slightly tangential and had to be redirected to the examination questions. The Veteran did not display any perceptional issues/psychotic features during the exam. He did not report any current intention of suicide or homicide. The examiner further indicated that the Veteran was capable of managing his own financial affairs. The examiner concluded that the Veteran’s anxiety disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. As it pertains to the rating period prior to January 28, 2020, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s anxiety disorder more nearly approximates the 50 percent rating criteria. In this regard, prior to January 28, 2020, the Veteran was found to manifest symptoms specifically contemplated by the 70 percent rating criteria. See January 2013 VA examination (noting that the Veteran had panic attacks and circumstantial, circumlocutory or stereotyped speech); see also June 2016 disability benefit questionnaire (indicating that the Veteran had memory loss and concluding that the Veteran’s condition was manifested by occupational and social impairment with reduced reliability and productivity). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran’s anxiety disorder meets the criteria of a 50 percent evaluation for the appeal period prior to January 28, 2020. Next, the Board finds that, after a review of the medical and lay evidence of record, a rating in excess of 50 percent is not throughout the entire rating period on appeal. The Veteran’s symptoms do not result in occupational and social impairment with deficiencies in most areas. In this regard, the Veteran and his wife are involved in daily activities, including attending church on Sundays, walking 3 to 4 miles a couple of times a week and spending time with finds and family. All his examiners indicate that he is capable of managing his own financial affairs. There is no indication in the record of any periods of violence or impaired impulse control. The Board also finds that for this time period, neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413. Furthermore, there is no indication of suicidal ideation, obsessional rituals interfering routine activities, impaired speech, spatial disorientation, neglect of personal hygiene or appearance, or any other manifestations resulting in occupational and social impairment with deficiencies in most areas. The Veteran generally denied suicidal and homicidal ideations, did not have any obsessional rituals that interfered with routine activities, had clear and coherent speech, was not in a state of near-continuous panic or depression affecting the ability to function independently, did not have impaired impulse control, did not display spatial disorientation, was appropriately groomed, and did not have inability to establish and maintain effective relationships. In sum, based on the evidence of record, the Board finds that a rating of 50 percent, but no higher, is warranted throughout the entire rating period on appeal. Further, a claim for a total rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence indicates that the Veteran is retired. Neither the Veteran nor his representative have indicated that the Veteran is unable to work as a result of his service-connected disabilities. As such, the issue of TDIU has not been raised at this time. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Asare, 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.