Citation Nr: 21015862 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-23 178 DATE: March 18, 2021 ORDER An increased disability rating of 70 percent, but not higher, for the service-connected anxiety disorder with posttraumatic stress disorder (PTSD) features, is granted for the entire period covered by the claim. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected anxiety disorder with PTSD features manifested in an overall disability picture more nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood. Total occupational and social impairment is not shown at any time during the appeal period. CONCLUSION OF LAW The criteria for the assignment of a 70 percent disability rating, but no higher, for the service-connected anxiety disorder with PTSD features have been more nearly approximated for the entire period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1968 to October 1969. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from the September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision granted an increased rating to 50 percent for the service-connected anxiety disorder with PTSD features from June 10, 2016. The Veteran’s Notice of Disagreement (NOD) was received in March 2017. The Statement of the Case was issued in March 2017, and the Veteran’s VA Form 9, substantive appeal to the Board was received in May 2017. In September 2019, the Veteran and his representative appeared before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. The transcript is of record. In December 2019, the Board remanded the claim for additional development of the record. Entitlement to a disability rating in excess of 50 percent for the service-connected anxiety disorder with PTSD features. The Veteran seeks an increased disability rating for his service-connected anxiety disorder with PTSD features, which is currently rated as 50 percent disabling for the period on appeal. The Veteran’s disability is rated pursuant to 38 C.F.R. § 4.130, DC 9413, under the General Rating Formula for Mental Disorders. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the probative evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the General Rating Formula, a 50 percent rating is assigned 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 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; in difficulty establishing 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 relationships, 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. A 100 percent rating is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. 38 C.F.R. § 4.130, Diagnostic Code 9435. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability rating to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to ward a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-24 (Fed. Cir. 2004). Rather, there must be a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria under the General Rating Formula. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The analysis should include whether any unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages; and, whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In August 2016, the Veteran underwent a VA examination for his claim. He was diagnosed with anxiety disorder with PTSD features. The Veteran reported that since his last examination his symptoms may have caused marital discord as he does not enjoy going out and interacting with others. The Veteran reported having a couple of friends and spending the majority of his time reading, working in his yard, and cooking. The Veteran reported an increase in anxiety, panic attacks, nightmares (3 to 4 times per week), intrusive memories (2 to 3 times per week), walking up with sweats and sleep problems (4 to 5 times per night despite medication), and flashbacks (several times per week lasting 5 seconds). The Veteran reported being arrested in July 2014 after getting into a fight with a family member at a cookout with the case being dismissed. The Veteran’s symptoms were noted to be depressed mood, anxiety, panic attacks more than once per week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be casually dressed and appropriately groomed, oriented, pleasant, cooperative, and maintaining good eye contact. The Veteran was tearful when describing events from Vietnam. His speech was normal, thought process linear and goal oriented. His concentration and memory were intact. His insight and judgment were good. There was no evidence of psychosis and the Veteran denied suicidal and homicidal ideations. The VA examiner noted that since the Veteran’s last examination, there has been an increase in frequency and severity of the Veteran’s symptoms. The VA examiner concluded that the Veteran’s symptoms manifested in occupational and social impairment with reduced reliability and productivity. An August 2016 and December 2016 VA mental health notes indicate that the Veteran was seen for medication management with each session lasting 20 minutes. The Veteran reported feeling upbeat and seeing a therapist. The Veteran also reported continuing to struggle with recurrent thought to time in service. He was described as having well-groomed appearance, good eye contact, being friendly and pleasant, oriented, with normal speech and thought content. His mood was good an affect reactive. There were no delusions, hallucinations, or suicidal or homicidal ideations. His Insight and judgment were normal. An October 2017 VA mental health note indicates that the Veteran was seen for medication management and therapy. His session lasted 20 minutes. The Veteran reported doing “so-so”, still having sleep trouble, and waking up 2 to 3 times per week. The Veteran was noted to be upset about recent news and escalating discourse. The Veteran was described as having a well-groomed appearance, good eye contact, being friendly and pleasant, oriented, with normal speech and thought content. His mood was good an affect reactive. There were no delusions, hallucinations, or suicidal or homicidal ideations. His Insight and judgment were normal. An August 2018 VA mental health note indicates that the Veteran was seen for medication management and therapy. His session lasted 20 minutes. The Veteran was described as having a well-groomed appearance, good eye contact, being friendly and pleasant, oriented, with normal speech and thought content. His mood was good an affect reactive. There were no delusions, hallucinations, or suicidal or homicidal ideations. His Insight and judgment were normal. A November 2018 VA mental health note indicates that the Veteran reported doing alright and noting overall stable anxiety and mood, but trouble with sleep. The Veteran’s medications were reviewed. The session lasted 20 minutes. The Veteran was described as having well-groomed appearance, good eye contact, being friendly and pleasant, oriented, with normal speech and thought content. His mood was good an affect reactive. There were no delusions, hallucinations, or suicidal or homicidal ideations. His Insight and judgment were normal. He was ordered follow up in 3 months. During the September 2019 Board videoconference hearing, the Veteran indicated that his anxiety disorder is worse than currently rated. He also alleged that his symptoms worsened since the August 2016 examination. The Veteran indicated that he has not been forthcoming with his therapist regarding the severity of his symptoms and that he wishes to relate his symptoms to his therapist and submit the records in support of his claim for a higher evaluation. An October 2019 VA trauma recovery services note indicates that the Veteran was seeking outpatient treatment for increase in trauma-related symptoms. He presented with anxiety, irritability, depressed mood, avoidance, re-experiencing symptoms (e.g., intrusive thoughts, flashbacks, and nightmares) regarding combat and military sexual trauma experienced during deployment. The Veteran’s session lasted approximately 50 minutes. The Veteran was recommended to participate in group therapy and undergo a further PTSD diagnosis and treatment psychoeducation. The Veteran was noted to be frustrated and irritated when informed that that particular therapist would not be treating him as they are transitioning out of the facility. It was noted that he reported feeling misled and upset about being transferred and having to discuss traumatic topics with someone new again. It was noted that the Veteran abruptly stood up to say goodbye, and that the Veteran refused when encouraged to stay and conclude the session. Under assessment, it was noted that the Veteran’s mood was initially anxious but pleasant with congruent affect. It was also noted that over the course of the session the Veteran expressed agitation and irritable arousal, increased fidgeting, and increased volume of speech, before abruptly leaving. There was no evidence of psychosis, intoxication, and the Veteran did not report suicidal or homicidal ideations. It was noted that the Veteran will call back to participate in group therapy and continue medication management. A December 2019 VA mental health note indicates that the Veteran was seen for a 20-minute appointment for medication management and therapy. It was noted that his mood was stable, and anxiety is not great. The Veteran discussed his frustration with the VA trauma services assessment. In February 2020, the Veteran underwent a VA examination for his claim. He was diagnosed with anxiety disorder with PTSD features. The Veteran reported that since the date of his last examination, which was in August 2016, he continues to have marital discord, having no friends, and being isolated. The Veteran reported spending his time at home reading and working in his yard. He was noted to have adult children with whom he maintained a good relationship. The Veteran also reported seeing a VA therapist for psychotropic medication management. He also reported that in October 2019, he was seen for a trauma recovery service assessment and triaged to mental health for further treatment. The Veteran reported being arrested for a physical altercation two years ago. His symptoms were noted to be depressed mood, anxiety, panic attacks more than once per week, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Under behavioral observations, it was noted that the Veteran was casually dressed, appropriately groomed, oriented, pleasant, cooperative, and maintained good eye contact. The Veteran was noted to be mildly agitated with no psychomotor abnormalities. His speech was normal, thought process linear and goal-directed. The Veteran’s concentration, memory, and attention were intact. His insight and judgment were good. There was no evidence of psychosis or formal thought disorder. The Veteran denied suicidal or homicidal ideation. There were no noted impairments in his ability to attend to his activities of daily living. The Veteran reported continued anxiety, panic attacks, nightmares, intrusive memories, sleep problems, anger and irritability, sweats related to his combat exposure. The VA examiner noted that a review of the VA therapy notes indicated overall mood to be stable and anxiety not great. The Veteran was noted to have continued irritability and was taking medication for anxiety. The VA examiner also noted that the Veteran’s VA treatment notes indicated that he reported military sexual trauma. The VA examiner concluded that the Veteran’s symptoms manifested in occupational and social impairment with reduced reliability and productivity. In February 2020, the Veteran’s VA treatment notes indicate that he was having difficulty with his therapist assignments. A February 10 note indicates that the Veteran called and reported being seen by a particular therapist twice and then being passed along to another therapist. The Veteran reported leaving the session with the new therapist early in frustration as it is difficult for him to speak of traumas. A February 11 note indicates that the Veteran called the VA the next day and expressed concerns with why his previous therapist stopped treating him. There was an indication that the Veteran may have thought that the particular therapist singled him out and didn’t want to treat him. The Veteran was reassured and informed that the particular therapist is no longer at the facility and that a new therapist will be contacting him to continue treatment. A May 2020 VA mental health note indicates that the Veteran participated in a 17-minute phone call in lieu of in-person meeting. The note indicates that the Veteran has been feeling stressed out about Covid 19 and has friends that are currently ill with it. The Veteran reported more anxiety and feeling cooped up in his house. He reported walking around in his yard but not venturing far from home. He reported his sleep being chronically bad, with nighttime wakening. He also reported seeing his individual therapist which was helpful. The Veteran denied suicidal and homicidal ideations, hallucinations, paranoia, and was noted to be low risk for violence or suicide. Under mental health status, it was noted that the Veteran was a bit more anxious. A September 2020 letter from A.F., a private forensic mental health consultant indicates that he has been seeing the Veteran more frequently since the advent of the current Covid 19 crisis. A.F. indicates that due to combined effects placed upon the Veteran due to the Covid 19 restrictions, his disability worsened and rendered him an appropriate candidate to receive a 100 percent disability rating. A.F. also indicates that the Veteran’s symptoms include suicidal ideations, frequently engaging in illogical and irrelevant speech, depressed affect, feelings of panic, difficulty functioning independently and appropriately, increased periods of irritability, and difficulty adapting to stressful circumstances. A.F. indicates that due to the Veteran’s advanced age and increased lack of resiliency to stressors, these symptoms will not only persist but worsen over time. A.F. noted that the opinion is based not only on interactions with the Veteran, but also no conversations with the Veteran’s family and other significant persons in his life. Additionally, the Veteran’s VA treatment records contain multiple letters from the VA mental health department indicating that the Veteran was contacted by phone to schedule his next mental health follow up appointment and has not returned the phone calls. The Veteran was urged to contact the VA to schedule his appointments. Based on the review of the entire record, the Veteran’s overall disability picture more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood for the entire period on appeal. As such, the assignment of a 70 percent disability rating is warranted for the period on appeal from June 10, 2016. Additionally, staged ratings are not warranted in this matter as the overall disability picture has been relatively consistent for the entire period on appeal. Pursuant to 38 C.F.R. § 4.126, the overall assessment of the Veteran’s disability is considered, not merely the clinical impressions at the time of the select few VA examinations. While the record shows isolated periods when the Veteran’s symptoms are better, especially prior to the effects of the Covid 19 pandemic, the overall the symptoms remained consistent and did not show sustained improvement throughout the appeal period. These symptoms include anxiety, depression, disturbances in motivation and mood, sleep disturbances, nightmares, increased irritability and anger outburst, difficulty establishing and maintaining social relationships, avoidance, and isolation. Indeed, the Veteran continued to experience anxiety and problems with processing trauma. Moreover, the Veteran’s private mental health consultant, A.F. indicated that the Veteran experienced suicidal ideations and worsening of symptoms. The Veteran experienced marital disturbances due to his symptoms. There are also indications that the Veteran had intermittent problems with following his prescribed treatment. The Veteran could not complete his October 2019 VA trauma services assessment, he has not participated in group therapy, and there are several instances where the Veteran did not make timely follow up appointments. In essence, the records reflect that the Veteran’s symptoms may wax and wane from one day to the next; however, the Veteran’s overall disability picture is manifested by symptoms of such type, severity, and frequency as to more nearly approximate the criteria for a disability rating of 70 percent for his service connected anxiety disorder with PTSD features. While the August 2016 and February 2020 VA examination reports, viewed in isolation, suggest that the Veteran’s symptoms are not severe enough to warrant the assignment of a 70 percent disability rating, these findings contradict the Veteran’s September 2019 Board videoconference testimony and the findings indicated by A.F. in the September 2020 letter. The Veteran’s testimony is more consistent with the findings of A.F., and there is no reason to doubt the Veteran’s credibility in this regard. Thus, the evidence is at least in relative equipoise as to whether the criteria for the assignment of a 70 percent disability rating are more nearly approximated. Moreover, the Veteran’s VA treatment records were prepared by the Veteran’s long-term treating providers, who are far more familiar with his overall disability picture than the VA examiners who have only met her for the purpose of completing the VA compensation and pension examinations. Indeed, the Veteran testified that he has not been forthcoming regarding the severity of his mental health treatments and his VA treatment notes indicate that he had trouble communicating with new providers and staying on top of his appointments and recommendations. That notwithstanding, the Veteran’s symptoms and overall level of impairment have not more nearly approximated the total occupational and social impairment required for a 100 percent rating at any time during the appeal period. The Veteran continued to stay oriented, maintained relationships with family, did not suffer from auditory or visual hallucinations, delusions, or psychosis. While the Veteran reported being isolated, he still worked and walked around his yard, cooked for his wife, and maintained relationships with his adult children. Most importantly, even though the Veteran has had some problems with treatment, the September 2020 letter from A.F. as well as the Veteran’s record of staying compliant with prescribed medications indicate that he does participate in regular therapy and has increased the frequency of that treatment when needed. While the Veteran has reported a worsening of symptoms and this worsening was confirmed by the September 2020 letter, the severity of the symptoms does not manifest in a total occupations and social impairment. In his letter, A.F. indicated that the Veteran is a candidate for a 100 percent disability rating. However, the description of the Veteran’s symptoms does not indicate a total occupational and social impairment. In other words, A.F. indicated that the Veteran’s disability warrants a 100 percent disability rating but did not describe symptoms or behaviors that are consistent with the type and severity of symptoms warranting a 100 percent disability rating. There is no indication that the Veteran was hospitalized for his symptoms or saw anyone beyond the private mental health consultant. The Veteran’s reports that he has not been forthcoming with the severity of his symptoms is recognized. However, given the totality of the probative evidence in this case, there is no indication that the Veteran’s symptoms, reported or not, present a total occupational and social impairment. Although the overall disability picture reflects deficiencies in most areas, the Veteran has, in essence, remained in touch with reality, continued to take his prescribed medications, and participated in treatment throughout the appeal period. Accordingly, total occupational and social impairment is not demonstrated in this case. For the foregoing reasons, an increased disability rating of 70 percent, but not higher, for the service-connected anxiety disorder with PTSD features is warranted for the entire period on appeal, from June 10, 2016 onward. A disability rating of 100 percent is not warranted at any time during the appeal period. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.