Citation Nr: 21015151 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-30 302 DATE: March 16, 2021 ORDER A rating in excess of 50 percent for panic disorder without agoraphobia is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s panic disorder without agoraphobia was manifested by symptoms of the type and extent, frequency, and/or severity (as appropriate) that are indicative of occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s service-connected disabilities did not combine to cause him to be unable to obtain and maintain gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for panic disorder without agoraphobia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412 (2020). 2. The criteria for an award of TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.340, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to February 1977 and from October 1979 to December 1980. On appeal are two rating decisions. The first is a January 2012 rating decision that denied a rating in excess of 50 percent for the Veteran’s service-connected panic disorder without agoraphobia. The second is a July 2015 rating decision that denied TDIU. When the matters were initially before the Board of Veterans Appeals (Board) in August 2018, the Board remanded for additional development. The matters have now been returned to the Board for appellate review. The Board noted that the issue of service connection for sleep apnea is no longer before the Board. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for sleep apnea and that represented a grant of the full benefit sought on appeal. Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. Also of record are VA examinations conducted in December 2011, May 2015, and June 2020. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 50 percent for panic disorder without agoraphobia. Panic disorder without agoraphobia is rated pursuant to the criteria of Diagnostic Code 9412 under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent evaluation will be assigned with evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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 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 ideations; 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 the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); 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; intermittent inability to perform the 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. Here, the Veteran seeks a disability rating in excess of 50 percent for panic disorder without agoraphobia. After review of the medical and lay evidence in this case, the Board finds that a disability rating in excess of 50 percent is not warranted for the Veteran’s service-connected panic disorder without agoraphobia. The Veteran underwent a VA examination in December 2011. The examiner noted the Veteran had 3 diagnoses: (1) panic disorder without agoraphobia; (2) generalized anxiety disorder; and, (3) alcohol dependence. The examiner stated it was not possible to differentiate what symptoms are attributable to each diagnosis. For VA rating purposes, the examiner noted the Veteran’s symptoms included anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; and, difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted the Veteran reported he had panic disorder symptoms once or twice per week and that during a panic attack, he had shortness of breath, palpitations, feelings of tightness, tingling sensations of the arms and legs, as well as sweating. He also reported anxiety symptoms of a chronic nature in the form of worrying irritability, restlessness, feeling keyed up, and having muscle tension. In terms of his social/family history, the Veteran reported he had been married twice before in the past; that he had a total of 6 children, all grown and doing well and reports of good relationship with them; and that he was now living with a significant other of approximately 17 years in a relationship described as “off and on” for years. As for employment, the Veteran reported that he had been working as a long distance truck driver for about 10 years; that before that, he did a number of different odd jobs such as laborer, chemical plant worker, etc.; and, that he has put in for vocational retraining in hopes that he can find a different job, maybe behind a desk or working with computers. Currently, he was attending school through Vocational Rehabilitation working on a degree in computer information systems. The examiner stated the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran underwent another VA examination in May 2015. The examiner diagnosed the Veteran with (1) unspecified anxiety disorder and (2) unspecified alcohol-related disorder; and stated it was not possible to differentiate what symptoms are attributable to each diagnosis. For VA rating purposes, the Veteran’s symptoms included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; and mild memory loss, such as forgetting names, directions or recent events. The Veteran reported that his relationship with his live-in girlfriend “has its ups and downs.” The examiner noted the Veteran’s girlfriend was in attendance and she stated that “it gets a little trying sometimes due to very bad mood swings” on the part of the Veteran. In terms of employment, the Veteran reported that he hasn’t worked since 2009 when he was an over the road trucker but was forced to quit due to all of the medications he takes. He noted that he survives on his VA check and was denied SS Disability. He is currently attending school at University of Arkansas (a branch campus) for information technology. He said he will graduate around the end of the year. The examiner stated the Veteran’s symptoms 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 routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, and mild memory loss. In addition, the examiner stated that in an employment situation, the Veteran may have difficulty with getting along with others who try to give him directions or orders. However, the examiner opined that if the Veteran works independently, he can function in a satisfactory manner. The Veteran underwent a final examination in June 2020. The examiner diagnosed the Veteran with panic disorder without agoraphobia. The Veteran reported panic episodes once or twice weekly with no apparent trigger. During a panic attack, the Veteran experiences feelings of pressure in his head, elevated heart rate, numbness or tingling sensations in his arms, and fear of dying. The Veteran experiences persistent concern or worry about additional panic attacks. The Veteran’s panic attacks are not attributable to the direct physiological effects of a substance or of another medical condition. The examiner stated the Veteran does not meet the DSM-V diagnostic criteria for generalized anxiety disorder. For VA rating purposes, the Veteran’s symptoms included panic attacks more than once a week and chronic sleep impairment. In terms of employment, the Veteran reported he worked as a long-haul truck driver for many years; that he quit a few years ago on the advice of the VA because of concerns that he may not be safe to drive because of poor sleep associated with Obstructive Sleep Apnea; and, because of the sedating side effects of the Veteran’s anti-anxiety medication. However, the Veteran states that he went back to work driving part-time last year. He states that he has a regular route into Georgia once a week or so. The Veteran also states that he was going to school as part of a VA rehab program and that he got an Associate’s Degree in Information Systems and is three classes short of a Bachelor’s Degree in Information Technology. The Veteran stated he has not tried to find a job in that field because of his concern that his age would be an impassable barrier. The Veteran states that he quit school short of his Bachelor’s Degree because his girlfriend wanted him to work in order to help pay the bills. The examiner stated the Veteran’s symptoms 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 routine behavior, self-care, and conversation. The Veteran’s VA treatment records from the Memphis VAMC are associated with his claims file. In summary, these records reflect the Veteran has undergone treatment for his psychological disorders, to include medication management. A November 2011 psychiatry note reflects the Veteran has a diagnosis of panic disorder and is taking Lorazepam for anxiety. A September 2012 Psychiatry Attending Note reflects the Veteran reported panic attacks 2-3 times per week for 3-4 hours at a time. He reported enough energy for school, frequent worry about various things, frustration with skin condition, denied SI [suicidal ideation], and stated he gets adequate sleep. A June 2015 psychiatry note reflects the Veteran was seen for routine medication management and it was noted he reported needing to take Lorazepam about 2-3 times per week for the last few weeks. A July 2020 VA treatment record noted that the Veteran reported medication was working and he was having fewer panic attacks and sleeping better with initiation but he continued to wake during the night. The Veteran’s Social Security Administration (SSA) records are associated with his claims file. A September 2010 SSA Determination reflects the Veteran was found not to be disabled due to his anxiety related disorder and other unspecified arthropathies. Upon consideration of the medical and lay evidence in this case, including the opinions and findings of the December 2011 VA examiner, the May 2015 VA examiner, and the June 2020 VA examiner, all of whom concurred in their findings, the Board finds that the Veteran’s mental health symptoms resulted in limitation of social and occupational functioning 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. The Board finds this level of functioning to be consistent with a rating of 30 percent but will leave undisturbed the current rating of 50 percent for the period on appeal. The Veteran’s symptoms, which include panic attacks that occur more than once a week; mild memory loss, such as forgetting names, directions or recent events; depressed mood; anxiety; chronic sleep impairment; and, difficulty in adapting to stressful circumstances, including work or a worklike setting; are consistent with a 50 percent rating for the period on appeal. The Board does not find that the Veteran’s panic disorder without agoraphobia caused deficiencies in most areas (the basis for a 70 percent rating) at any time during the appellate period. There is no evidence of symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 70 percent rating, such as suicidal ideations; 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; spatial disorientation; neglect of the veteran’s personal appearance and hygiene; or, inability to establish and maintain effective relationships. The June 2020 VA examiner noted that the Veteran did not report having “near continuous panic or depression, impaired impulse control, or difficulty adapting to stressful situations. In conclusion, the Board finds that, for the period on appeal, the Veteran’s panic disorder without agoraphobia symptoms demonstrated occupational and social impairment with reduced reliability and productivity. Therefore, a rating in excess of 50 percent for panic disorder without agoraphobia is not warranted. 38 C.F.R. §4.130, Diagnostic Code 9412. 2. Entitlement to a TDIU Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating based on individual unemployability due to service-connected disability may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, the Veteran’s total disability rating is 80 percent; his panic disorder without agoraphobia is rated at 50 percent; and his sleep apnea is rated at 50 percent. He thus meets the schedular criteria for entitlement to TDIU. As such, the Board will proceed with review of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Veteran’s Social Security Administration (SSA) records are associated with the file. A September 2010 SSA Determination reflects the Veteran was found not to be disabled due to his anxiety related disorder and other unspecified arthropathies. Because the Veteran is service connected for panic disorder without agoraphobia and sleep apnea, there are a number of VA examinations of record where, as part of the examination, the examiner inquired about the Veteran’s employment. The Veteran underwent a VA examination for his panic disorder without agoraphobia in December 2011. As part of that examination, the Veteran reported that he had been working as a long distance truck driver for about 10 years; that before that, he did a number of different odd jobs such as laborer, chemical plant worker, etc.; and, that he has put in for vocational retraining in hopes that he can find a different job, maybe behind a desk or working with computers. At that time, he was attending school through Vocational Rehabilitation and working on a degree in computer information systems. The examiner stated the Veteran’s symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran underwent another VA examination for his panic disorder without agoraphobia in May 2015. As part of this examination, the Veteran reported that he hasn’t worked since 2009 when he was an over the road trucker but was forced to quit due to all of the medications he takes. He noted that he survives on his VA check and was denied SS Disability. He is currently attending school at University of Arkansas (a branch campus) for information technology. He said he will graduate around the end of the year. The examiner stated the Veteran’s symptoms 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 routine behavior, self-care, and conversation. In addition, the examiner stated that in an employment situation, the Veteran may have difficulty with getting along with others who try to give him directions or orders. However, the examiner opined that if the Veteran works independently, he can function in a satisfactory manner. The Veteran underwent a final examination for his panic disorder without agoraphobia in June 2020. The examiner diagnosed the Veteran with panic disorder without agoraphobia. In terms of employment, the Veteran reported he worked as a long-haul truck driver for many years; that he quit a few years ago on the advice of the VA because of concerns that he may not be safe to drive because of poor sleep associated with sleep Apnea; and, because of the sedating side effects of the Veteran’s anti-anxiety medication. However, the Veteran states that he went back to work driving part-time last year. He states that he has a regular route into Georgia once a week or so. The Veteran also states that he was going to school as part of a VA rehab program and that he got an Associate’s Degree in Information Systems and is three classes short of a Bachelor’s Degree in Information Technology. The Veteran stated he has not tried to find a job in that field because of his concern that his age would be an impassable barrier. The Veteran states that he quit school short of his Bachelor’s Degree because his girlfriend wanted him to work in order to help pay the bills. The examiner stated the Veteran’s symptoms 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 routine behavior, self-care, and conversation. A VA examination for sleep apnea was conducted in August 2015. As part of his written report, the examiner opined that the Veteran’s sleep apnea does not impact his ability to work. Another VA examination for the Veteran’s sleep apnea was conducted in October 2019. As part of his written report, the examiner opined that the Veteran’s sleep apnea does not impact his ability to work. The examiner stated that the Veteran reported that he was able to attend school and do ok at school. His sleep apnea was not impacting his ability to attend of participate in school. The Board has considered the medical and lay evidence in this case. The Board finds that although the Veteran does indeed have some impairment due to his service-connected disabilities, those disabilities are not of such severity as to effectively preclude all forms of substantially gainful employment. Each examiner noted above has independently opined that the Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. The opinions of the VA examiners are supported by the findings of the SSA, which also determined that the Veteran was not unable to work. Though VA is not bound by the findings of other agencies, this evidence may serve as a factor in the Board’s determination. Further, the evidence of record overwhelmingly supports a finding that the Veteran’s service-connected disabilities do not, when considered alone, prevent him from obtaining or maintaining employment. Here, as noted above, each of the Veteran’s VA examiners have found his service-connected disabilities not to prevent him from working. Further, the Board notes that the Veteran reported in his June 2020 VA examination for his panic disorder without agoraphobia, that he had continued his college studies and was just three classes short of a Bachelor’s Degree in Information Technology. The Board does not doubt that the Veteran’s service-connected disabilities have an effect on his employability, as evidenced by his combined disability rating of 80 percent. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability picture, the evidence of record does not support his claim that his service-connected disabilities, when considered alone, are sufficient to produce unemployability. Although they produce impairment to some degree, the evidence does not reflect that all gainful employment is precluded solely due to such service-connected disabilities. The Board acknowledges that the symptomatology associated with the Veteran’s service-connected disabilities is appropriately compensated by the assigned 80 percent combined rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Further, while the Veteran is competent to discuss the symptoms of his service-connected disabilities and his perception of their effect on his unemployment, his assertions are outweighed by the evidence of record. Accordingly, a basis for a grant of a TDIU has not been presented. Thus, the Board finds that the evidence does not demonstrate that the Veteran is unemployable due to his service-connected disabilities. As such, the benefit of the doubt doctrine is inapplicable, and the claim for entitlement to a TDIU must be denied. 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.