Citation Nr: 21015171 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-00 972 DATE: March 16, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for right shoulder degenerative joint disease (DJD) is denied. Entitlement to an initial rating in excess of 50 percent for an anxiety disorder prior to August 14, 2020 is denied. Entitlement to a rating in excess of 70 percent for an anxiety disorder from August 14, 2020 is denied. FINDINGS OF FACT 1. The Veteran’s right shoulder disability is manifested by limitation of motion at most limited to flexion from 0 to 70 degrees, abduction from 0 to 80 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 55 degrees. 2. Prior to August 14, 2020, the Veteran’s anxiety disorder manifested by no more than occupational and social impairment with reduced reliability and productivity. 3. From August 14, 2020, the Veteran’s anxiety disorder manifested by no more than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for right shoulder degenerative joint disease (DJD) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. Prior to August 14, 2020, the criteria for an initial rating in excess of 50 percent for an anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.21, 4.126, 4.130, DC 9413. 3. From August 14, 2020, the criteria for a rating in excess of 70 percent for an anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.21, 4.126, 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to October 1999. This matter is on appeal from an October 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in May 2019, when entitlement to an initial rating in excess of 30 percent for an anxiety disorder was denied and an initial rating in excess of 20 percent for degenerative joint disease (DJD) was remanded for further development. The Veteran appealed the May 2019 denial of an increased initial rating for an anxiety disorder to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Partial Remand (JMR) that vacated the Board’s denial of an initial rating in excess of 30 percent for an anxiety disorder and remanded it for further action. In November 2020, the Board remanded both matters for further development. In January 2021, the Agency of Original Jurisdiction (AOJ) granted entitlement to an initial 50 percent rating for an anxiety disorder effective November 9, 2012 and a rating of 70 percent effective August 14, 2020. As the RO did not award the maximum possible rating, this matter remains in appellate status. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating 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 military 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.     In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).     Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).     Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).     In both initial and increased rating claims, the Board must consider staged ratings for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The potential for staged ratings accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. Id. The Board has therefore considered the claim on appeal with the potential for a staged rating in mind.     The Board notes that it has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.    1. Right Shoulder Disability The Veteran contends that he is entitled to an initial rating in excess of 20 percent for right shoulder degenerative joint disease (DJD). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. A June 2018 VA examination reflects that the Veteran is right hand dominant; thus, the right arm is the major arm. The Veteran’s right shoulder disability has been evaluated under Diagnostic Code (DC) 5201. DC 5201 provides a 20 percent rating for limitation of motion of the major arm at the shoulder level. A 30 percent rating is warranted for limitation of motion of the major arm to midway between the side and shoulder level. A 40 percent rating is warranted for limitation of motion limited to 25 degrees from the side. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. DC 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). The plain meaning of DC 5201, therefore, is that any “limitation of motion of” a single arm at the shoulder joint constitutes a single disability, regardless of the number of planes in which the arm’s motion is limited. Yonek, 722 F.3d at 1359. The recent amendment to DC 5201 provides for a 20 percent rating for limitation of the major arm at the shoulder level, defined as flexion and/or abduction limited to 90 degrees. A 30 percent rating is warranted for limitation of the major arm to midway between the side and shoulder level, defined as flexion and/or abduction limited to 45 degrees. A 40 percent rating is warranted for limitation of motion of flexion and/or abduction limited to 25 degrees from the side. The amended DCs merely clarify the existing diagnostic criteria and do not provide a greater benefit for any of the Veteran’s functional loss. As such, the Board will not conduct a separate analysis. Consideration of DCs 5200, 5202, and 5203 is inappropriate in this case as the Veteran’s shoulder disability does not include the pathology required in the criteria for those DCs (ankylosis of scapulohumeral articulation, humerus impairment, and impairment of the clavicle or scapula). 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). In this case, September 2016 VA treatment records note right shoulder pain which started 3 months ago and was becoming progressively worse. He reported difficulty lifting or reaching out or behind his back. The Veteran was provided with a VA examination in January 2017. The examiner noted a diagnosis of right rotator cuff tendonitis, right rotator cuff tear, and right acromioclavicular joint osteoarthritis. Initial range of motion testing showed flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. The examiner noted that range of motion did not contribute to functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. Muscle strength training showed normal strength. There was no muscle atrophy and no ankylosis. The examiner noted that shoulder instability, dislocation, or labral pathology was not suspected. The examiner noted an ACT joint condition, acromioclavicular arthritis. The examiner noted a torn rotator cuff repair in October 2014. The Veteran did not use any assistive device. The examiner noted that mild arthritis is the cause of the shoulder pain and stated that the Veteran is unable to do any heavy lifting or overhead tasks. The examiner found no evidence of pain in non-weight bearing and stated that it is not medically appropriate as “it could cause injury to the Veteran.” The Veteran was provided with an additional VA examination in June 2018. The Veteran reported daily flare-ups. The Veteran stated that he takes Naproxen and puts on a lidocaine patch over the area and rests for a couple of hours during a flare-up. Initial range of motion testing showed flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation from 0 to 90 degrees, and internal rotation from 0 to 90 degrees. The examiner stated that she was unable to estimate limitation of motion during flare-ups without resorting to speculation. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. A rotator cuff condition was not suspected, and shoulder instability, dislocation, or labral pathology were not suspected. The Veteran did not have loss of head (flail shoulder), nonunion (false flail shoulder), or fibrous union of the humerus. There was no malunion of the humerus with moderate or marked deformity. The examiner noted pain as the residual of an October 2010 rotator cuff repair. The Veteran did not use any assistive device. The examiner noted that the Veteran is not able to carry a tool bag or work on computer equipment. As the examiner did not provide an estimate of the range of motion during a flare-up, the Board assigns little to no probative value to these findings. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran was provided with an additional VA examination in November 2019. The examiner noted that the right shoulder conditions limits desk job activities and productivity given the pain and need for frequent breaks. The Veteran also reported that it limits social and recreational activities like household chores and playing with his grandchildren. The Veteran reported flare-ups that are moderate to severe and last from 15 to 45 minutes. He reported that they are precipitated by any wrong move but mostly by nothing specific. He reported that they are alleviated by rest and medication and occur two to three times a week. The Veteran reported pain using the right arm, interruption of sleep, and inability to engage in upper body gym exercises. Initial range of motion testing showed flexion from 0 to 180 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 80 degrees, and internal rotation from 0 to 80 degrees. No pain was noted on examination. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The Veteran was examined immediately after repeated use over time. The examiner noted that pain significantly limited functional ability, with flexion from 0 to 180 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 80 degrees, and internal rotation from 0 to 80 degrees. The examiner noted that the examination was conducted during a flare-up and noted that pain causes flexion from 0 to 180 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 80 degrees, and internal rotation from 0 to 80 degrees. Muscle strength testing showed active movement against some resistance with a reduction in muscle strength. There was no muscle atrophy and no ankylosis. The examiner noted that a rotator cuff condition was suspected. The Hawkins Impingement Test, Empty-Can Test, and Lift-Off Subscapular Test were negative, and the External Rotation/Infraspinatus Strength Test was positive. Shoulder instability, dislocation, or labral pathology were not suspected. The Veteran did not use any assistive device. The examiner noted that, regarding repeated use over time and during flare-ups, although the Veteran’s range of motion was unchanged, functional ability was limited due to limitations with abduction and rotation due to guarding and pain of the right shoulder In December 2020, the Veteran was provided with an additional VA examination. The Veteran reported flare-ups with extreme pain lasting 30 minutes to an hour four to five days per week. The Veteran stated that he is unable to carry more than a jug of milk in the right hand, has difficulty cleaning the house, has difficulty racking or doing yard work, and has difficulty sitting at a desk for an extended period of time. He reported that driving causes pain at times. Initial range of motion testing showed flexion from 0 to 85 degrees, abduction from 0 to 90 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 55 degrees. Pain was noted on flexion, abduction, external rotation, and internal rotation. There was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion. The examination was not conducted during a flare-up. The examiner noted that pain, fatigue, weakness, and lack of endurance significantly limit functional ability with flare-ups. The examiner estimated range of motion during flare-ups with flexion from 0 to 70 degrees, abduction from 0 to 80 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 55 degrees. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy and no ankylosis. The examiner noted that a rotator cuff condition was suspected. The Hawkins Impingement Test, Empty-Can Test, External Rotation/Infraspinatus Strength Test, and Lift-Off Subscapularis Test were negative. No instability, dislocation, or labral pathology was suspected. The Veteran did not use any assistive device. Regarding compliance with Correia v. McDonald and the prior remand directives, the examiner noted that there was no objective evidence of pain on passive range of motion testing, non-weight bearing, or weight bearing. Upon review of the record, the Board finds that the manifestations of the Veteran’s right should disability more nearly approximates the criteria for a 20 percent evaluation. The Board acknowledges the functional limitation discussed above, to include limitation in the ability to perform activities such as heavy lifting and overhead tasks. However, even when considering functional loss factors of instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and additional loss after repetitive use testing and during flare ups, limitation of motion was at most shown to be limited to with flexion from 0 to 70 degrees, abduction from 0 to 80 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 55 degrees. As such, the Board finds that an initial rating in excess of 20 percent for right shoulder degenerative joint disease (DJD) is not warranted, and the claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5201. 2. Anxiety Disorder The Veteran contends that he is entitled to an increased rating for his service-connected anxiety disorder. As explained above, the Veteran’s disability is currently assigned an initial 50 percent rating and a rating of 70 percent effective August 14, 2020. The regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9413. Further, 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 personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like settings); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9413. Finally, 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 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. 38 C.F.R. § 4.130, DC 9413. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, “a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38C.F.R. §4.126. Prior to August 14, 2020 In this case, VA received an October 2012 report from a private medical provider, Dr. H.J., who discussed symptoms of anxiety about the future and frustration. He stated that the Veteran reported becoming depressed and anxious. He reported difficulty sleeping and relaxing. He reported that his work had started to become affected and that he had experienced a decrease in performance. He reported a significant decrease in intimacy between him and his wife, and he stopped playing with his children. He reported that he had not been socializing and was staying at the house most of the time. He reported becoming irritated and annoyed easily and that this had become “a daily struggle for him.” He reported feeling more critical of himself than he used to and feeling like crying, but he could not. He denied suicidal ideation. He reported feeling restless and losing interest in things. He reported greater difficulty making decisions. He stated that he felt worthless and did not have much energy. He reported a decreased appetite and concentration difficulty. He reported feeling distant from other people. His affect was “very constricted and he seem[ed] like he is very tense.” His speech was within normal limits. His mood and affect were depressed and anxious. There was some attention and concentration difficulty. He denied any auditory or visual hallucination. He denied any suicidal or homicidal ideation. There was no evidence of psychosis or delusions. He had fair insight and judgment at the time of the assessment. The Veteran was provided with a VA examination in September 2013. The Veteran reported an increase in symptoms. He described his current symptoms as including depressed mood, anhedonia, constant worthlessness, irritability, and sad most of the time with hopelessness. The examiner noted that the Veteran “downplayed his anxious symptoms during the interview portion of this evaluation” but that “he endorsed significant anxiety … and described having numerous depressive symptoms.” The Veteran reported having mild psychiatric symptoms resulting in some difficulty in social and occupational functioning, but he appeared to be generally functioning fairly well and had some meaningful interpersonal relationships. He described having become irritable with coworkers and worried about his job security but successfully maintained employment in his current position since October 1999 at 40 hours per week. He reported that he enjoys his job, keeps in touch with family and some friends, and has maintained a good relationship with his wife and some of his children. He described having some, albeit decreased, leisure activities which he enjoys. The examiner noted that while his symptoms “have not wholly prevented him from working, if his symptoms were to become more acute or if he was faced with an exceptionally and notable situational stressor, his productivity and work efficiency would decrease.” The examiner opined that the Veteran’s symptoms cause 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 reported sleep disturbances and lost interest in intimacy. He expressed feelings of worthlessness. The examiner noted prescription medication to decrease the irritable mood and to aid sleep. The Veteran reported becoming more irritable, which “occasionally leads to ‘outbursts’ or yelling” and that he had “snapped at coworkers.” The Veteran was cooperative during the examination. His hygiene and grooming were both good. His gross motor functioning appeared intact, and his speech was within the normal limits in articulation, rate, tone, volume, and production. He was alert, attentive, and oriented to person, place, time, and situation. His concentration was good. His immediate and recent memories were generally intact. He demonstrated abstract thinking in response to common proverbs. His thought processes were logical and organized. There was no evidence of delusions or perceptual disturbances. The Veteran reported that his mood was good. He reported feeling happy 20 to 30 percent of the time and sad 70 percent of the time. He reported feeling anxious daily and ashamed 20 percent of the time. He reported feeling irritable 50 percent of the time but mainly at work. He denied any current suicidal or homicidal ideation. The examiner noted symptoms of depressed mood, anxiety, and chronic sleep impairment. October 2014 private treatment records from Dr. H.J. note a blunted affect with psychomotor retardation. The Veteran was cooperative with no aphasia or dysarthria. His tone and volume were normal with no pressured speech. He reported anxiety, depression, and hyper arousal symptoms. His affect was congruent to his mood. There was no flight of ideas, no looseness of association, no circumstantial thought. He had thought blocking, word searching, and delayed thought. He denied any auditory, visual, or tactile hallucinations. He reported seeing images of moving objects at the edges of his sight. He denied suicidal or homicidal ideation. The Veteran also reported anxiety, moodiness, withdrawal from people, and getting irritated easily. He was unemployed and stayed home most of the time, and he reported not having many interactions with friends. Upon review of the record, the Board finds that the frequency, severity, and duration of symptoms prior to August 14, 2020 did not manifest by occupational and social impairment with deficiencies in most areas. The Board acknowledges the difficulty establishing maintaining relations discussed above; however, the record does not reflect an inability to establish and maintain effective relationships. Notwithstanding the relationship impairment discussed above, such as having limited interactions with friends and withdrawal from people, the record otherwise reflects that the Veteran maintained his marriage during this period. The Board acknowledges the episodes of outbursts and yelling at work discussed above (i.e., impaired impulse control). However, the Board finds that these incidents resulted in no more than reduced reliability and productivity. The record does not reflect that this irritability manifested by episodes of violence, as contemplated by the rating criteria. Further, the VA examiner found that such symptomatology only manifested situationally when faced with an exceptional and notable stressor. The Board also acknowledges the symptom of depression discussed above. However, this symptom did not manifest by near-continuous depression affecting the ability to function independently, appropriately, and effectively. Specifically, the evidence reflects that the Veteran has been able to function independently, as shown in his ability to manage his own financial affairs. The Board also acknowledges the Veteran’s report of occasionally seeing moving objects at the edge of his sight. However, these episodes do not reflect persistent delusions or hallucinations, as Dr. H.J. noted no audio, visual, or tactile hallucinations when discussing these episodes. The record also contains no evidence that these episodes contributed to occupational or relational impairment. Finally, regarding the Veteran’s employment history, although the Veteran reported being unemployed in an October 2014 private treatment record, in the later August 2020 Disability Benefits Questionnaire (DBQ), discussed in greater detail below, he reported he had been employed with the same employer as a network engineer for 17 years, only leaving the job in February 2018 due to the stress he felt. The Veteran reported he left his job with the intention of working for himself but was unable to do so and remained unemployed for five months until July 2018. In July 2018, he started another job, which only lasted six months. The Veteran stated he felt he was pushed out and discriminated against because of his age but did not suggest he left due to his psychiatric disorder. He again remained unemployed until July 2019 when he was hired again and has been working from home since, stating that he worries about keeping the job and is anxious about his performance but has remained employed. As evidence by his report of leaving a job in February 2018 and continued job-related anxiety, the Veteran’s psychiatric disorder has resulted in difficulty adapting to stressful circumstances. However, while difficulty adapting to stressful circumstances is indicative of a 70 percent disability rating, the Board finds that majority of the Veteran’s symptoms prior to August 14, 2020 more nearly approximated the criteria for a 50 percent rating, but not higher. From August 14, 2020 In August 2020, VA received a DBQ completed by Dr. H.J., who opined that the Veteran’s symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. He noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or in a work like setting, and an inability to establish and maintain effective relationships. Dr. H.J. also included an addendum which provided additional details. The Veteran reported intimacy issues. He stated that his wife “wants to go out and do a lot of things” but that he does not want to. He stated that his children “tend to shy away from [him], especially within the last few years.” He stated that his children “tend to walk on eggshells around [him] and they wonder why [he is] having anger outbursts or when it’s going to happen.” He stated that “his issues do impact his ability to sustain friendships.” He reported that he was “not into deep relationships or friendships and [tends] to prefer being alone because that’s what makes me comfortable.” He stated that his relationship with his children is “shaky” because “he feels that they cannot relate to him and they feel he is unapproachable.” He reported that his wife “tiptoe[s] around him and [is] fearful of his mood.” He stated that his relationship with his sibling “is very distant which might happen once or twice a year, and they initiate the calls.” He stated that he is currently employed and working as a security analyst for approximately one year. He reported stress and anxiety at work. He stated that he had worked at another business for 17 years but “left there when they moved me into a different team and it was tough to pick up with the new team mostly comprised of younger people which meant high stress” and “anger outbursts and panic issues” because “the workplace felt very hostile.” He reported that it affected his home life, and he had “started losing focus a lot at work.” He felt that his job performance had been “lacking and that his level speed at work was not adequate and he became severely depressed and stressed out, which prompted him to leave the company.” He “stayed unemployed from February 2018 to July 2018 and he thought about working for himself so he would avoid working with others.” He reported that he found a job in July 2018 which “did not last more than 6 months.” He reported feeling more panic and anxiety about his job performance and reported being worried about keeping his job. He reported thinking about his job daily and constantly worrying about losing it. The Veteran reported an increased amount of drinking during the day in order to deal with the stress of his job. He reported worsening of his depression. He reported worrying about losing his relationships with his family due to his issues. The Veteran was provided with an additional VA examination in January 2021 in which the examiner opined that the Veteran’s disability causes 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 reported having contact with relatives two to three times a year and his children once or twice a month. He denied having friends. He reported enjoying fishing but reported that he had not done that in a while. He reported working around the house, playing with the dog, watching television, and helping with household chores. He is currently employed 40 hours a week as a security analyst since July 2019. The Veteran reported feelings of depression, low moods, and hopelessness. He denied any current suicidal or homicidal ideation, intent, or plan. He reported anxiety, outbursts, anger, and concentration issues. Regarding the August 2020 DBQ, the examiner stated that the “treating provider risks rupturing the therapeutic relationship if he does not provide findings consistent with the patient’s wishes” and that the results are “meaningless for forensic purposes” because Dr. H.J. used a screening tool for depression that did not have an embedded validity scale. The examiner noted that “symptoms were marked on the DBQ that were not observed or reported today, such as suspiciousness, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stress, and inability to establish and maintain relationships.” He noted that it was “marked that he has occupational and social impairment with deficiencies in most areas, despite being gainfully employed for many years and having a long-term marriage with children.” The Veteran’s grooming and hygiene were good. Eye contact was good. He was pleasant and cooperative with the interview. Motor movement were unremarkable. He described his mood as “a little nervous.” Affect was broad and congruent to speech content. Speech was of normal pace, rhythm, and volume. Thought processes were linear and logical. There was no sign of a thought disorder, delusions, or hallucinations. He was fully oriented to person, place, time, and circumstance. His immediate memory was screened, and he was able to correctly recall three random words after a brief delay with a distractor. He was able to correctly recite five digits forward. There were no obvious concerns about his memory. (Continued on the next page)   Upon review of the record, the Board finds that the Veteran’s symptoms have not manifested by total occupational and social impairment from August 14, 2020. The record does not reflect symptomatology contemplated in the criteria for a total rating of such a frequency, severity, and duration causing total occupational and social impairment. Notwithstanding the impairment discussed above, the record reflects that the Veteran maintained employment during this period. The evidence also reflects that the Veteran has not experienced total social impairment during this period, as he has contact with his children monthly and has been in a long-term marriage. Accordingly, the Board finds that a rating in excess of 70 percent for an anxiety disorder from August 14, 2020 is not warranted, and the claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.21, 4.126, 4.130, DC 9413. ERIC MINE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.