Citation Nr: 21021070 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-59 626 DATE: April 9, 2021 ORDER Entitlement to a rating in excess of 50 percent for unspecified anxiety disorder, previously rated as post-traumatic stress disorder (PTSD), is denied. REMANDED Entitlement to an effective date prior to June 12, 2018 for total disability based on individual unemployability (TDIU), including on an extraschedular basis, is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for unspecified anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1969 to September 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) related to the anxiety disorder and from a September 2020 Decision Review Officer (DRO) rating decision regarding the effective date of the Veteran’s TDIU. This case was previously before the Board in December 2018. These issues were remanded to the agency of original jurisdiction (AOJ) for additional development. This case has now been returned to the Board for further appellate action. Increased Rating - Unspecified Anxiety Disorder The Veteran contends that his unspecified anxiety disorder is worse than contemplated by his current 50 percent rating. The Veteran originally received a 30 percent rating for what was then rated as PTSD in June 2012. This rating was effective August 26, 2011. This was based upon a February 2012 VA examination which found a diagnosis of an anxiety disorder with symptoms including anxiety and chronic sleep impairment. The examiner found a positive nexus for this anxiety disorder and the Veteran’s time in service. The examiner specifically found no diagnosis of PTSD. However, the same criteria are used for the rating of both the anxiety disorder and PTSD so the specific diagnosis would not change the interpretation. The Veteran’s initial rating was increased to 50 percent following a November 2019 VA examination which is the most recent examination for the Veteran’s anxiety disorder. At this VA examination the Veteran was noted as having occupational and social impairment with occasional decreases in work efficiency. The Veteran was noted as having been married to the same woman for over 50 years. The Veteran stated that he had a good relationship with his children and grandchildren. The only symptoms listed by the examiner were anxiety and chronic sleep impairment. The chronic sleep impairment included disturbed sleep due to nightmares relating back to his time in Vietnam. At this examination the Veteran denied both homicidal and suicidal ideations. The Veteran’s memory was found to be intact and he appeared to be neatly dressed and groomed. Previous examinations noted that the Veteran was active in his church and no change to his social history was noted. There was no worsening noted from prior examinations. The Veteran’s thoughts were noted as organized and coherent with no indication of delusions or hallucinations. The Veteran’s daughter and spouse submitted lay statements on his behalf in February 2013 with similar symptoms mentioned. These statements both indicate that the Veteran is very concerned about the presence of explosives while out in the world. His daughter specifically mentioned the Veteran telling her not to kick things found on the sidewalk because they could be filled with explosives. Both the Veteran’s spouse and daughter mentioned his habit of checking and double checking to ensure things are okay. This can manifest by checking the locks on the doors or by looping back in the car to ensure he didn’t cause an accident. The Veteran has received continuous treatment through VA mental health centers since 2011. A review of these records indicate that the Veteran’s stress levels rise and fall based upon the issues ongoing in his life. In January 2018 the Veteran was preparing to move and indicated he was undergoing a lot of stress. Despite this it was still indicated that he maintained good eye contact, was well oriented, and had relevant and goal directed speech. In December 2017 he indicated that he was sleeping much better due to his medication. He even reported that his anxiety was under control. The Veteran still indicated being hypervigilant. No additional symptoms were discussed. In order to receive a rating of 70 percent the Veteran’s symptoms must more closely indicate occupational and social impairment with deficiencies in most areas. Though not all symptoms must be met to receive a 70 percent rating the Veteran’s symptoms must more closely align with symptoms such as intermittently illogical speech, near-continuous panic or depression, impaired impulse control, neglect of personal appearance, and an inability to maintain effective relationships. While the Veteran’s disability does manifest hypervigilance, exaggerated startle response, difficulty sleeping, and anxiety, the Board must consider the Veteran’s entire disability picture. Based upon the lay and medical evidence of record, the Veteran maintains a stable relationship with his family and with his church. There is no indication that the Veteran is not capable of functioning independently or is a danger to himself or others. The Veteran has not reported suicidal or homicidal ideations, impaired impulse control, illogical speech, or neglect of personal appearance. Based upon a review of the record, the Board finds that the Veteran’s symptoms more closely approximate a 50 percent rating for the entire period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an increased rating for an unspecified anxiety disorder is not warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Earlier Effective Date - TDIU The Veteran was initially granted TDIU at a June 2020 rating decision. The effective date was May 14, 2020. This was the date that the application for individual unemployability benefits was received. This rating decision found the Veteran to be incapable of any labor related work due to his heart condition as well as his anxiety. The Veteran was noted as being unemployed for the last three years. The Veteran appealed this decision and claimed an earlier effective date. In a September 2020 DRO rating decision, the Veteran was granted TDIU effective June 12, 2018 which was the date that the Veteran’s service-connected disabilities first met the schedular criteria for TDIU. The Veteran’s attorney has not specifically mentioned seeking an extraschedular rating for TDIU however, by seeking an earlier effective date than when the Veteran became eligible under the schedular criteria an extraschedular rating can be implied. While the Board does not have the authority to assign an extraschedular TDIU in the first instance, the Board does have the authority to decide whether a claim should be referred to the Director, Compensation Service. See Barringer v. Peake, 22 Vet. App. 242 (2008). Entitlement to an earlier effective date for the rating period prior to June 12, 2018, for a TDIU on an extraschedular basis should be submitted to the Director, Compensation Service. The Veteran has asserted that, due to his service-connected heart condition and anxiety disorders, he was forced to quit his job in 2015 and has been unable to work since. See February 2016 VA examination. The evidence of record suggests his inability to secure and follow a substantially gainful occupation due to his disabilities existed prior to June 12, 2018. The Veteran underwent a VA examination for his heart condition in October 2015. This examiner found that the Veteran’s heart condition did not impact the Veteran’s ability to work. However, the VA examination for the Veteran’s heart condition in June 2018 indicated that the Veteran was unable to complete any labor related work and that there was no change in the condition since the prior October 2015 examination. This implies that the Veteran was unable to do any labor related work at the time of the October 2015 examination. The claim should therefore be submitted to the Director, Compensation Service for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16 (b) (2019). The matter is REMANDED for the following action: 1. Refer the Veteran’s claim of entitlement to an earlier effective date for the grant of TDIU to the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16 (b), for the appellate period prior to June 12, 2018. 2. After the above development, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his attorney a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the board for further appellate review. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.