Citation Nr: 21023424 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-01 411 DATE: April 20, 2021 ORDER An initial rating of 50 percent since September 29, 2003 for anxiety disorder not otherwise specified (NOS) is granted. REMANDED The issue of an initial rating of more than 10 percent from September 29, 2003, to December 11, 2020, and a rating of more than 40 percent since December 12, 2020, for severe lumbar myositis, status-post L4-L5 laminectomy, is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) since September 29, 2003, is remanded. FINDING OF FACT Since September 29, 2003, the Veteran’s anxiety disorder NOS caused occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial rating of 50 percent for anxiety disorder NOS since September 29, 2003, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, DC 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from June 1971 to July 1973. Entitlement to an initial rating of more than 30 percent for anxiety disorder NOS since September 29, 2003. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 30 percent rating is warranted for anxiety disorder NOS where there is 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, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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), and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Service connection is in effect for anxiety disorder NOS. In a February 2014 statement, the Veteran asserted that he had schizophrenia and a November 2020 VA examiner diagnosed unspecified depressive disorder. The record does not contain any evidence of a diagnosis of schizophrenia by a competent medical professional. However, for the purposes of rating the Veteran’s service-connected disorder, all psychiatric symptoms will be considered and attributed to the anxiety disorder NOS. See Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that when claimant has both service connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). During the June 2004 VA psychiatric evaluation, the Veteran reported irritability, mild short-term memory impairment, and episodes of anger and verbal aggression. The VA examiner noted the Veteran’s thought processes and communication skills were normal, he was neatly groomed, and he was capable of managing his finances. The Veteran denied regular psychiatric treatment, although he indicated he saw a psychiatrist once during his divorce. He denied suicidal or homicidal ideation or hallucinations. He reported having strong relationships with his family, who often helped him complete household tasks. The examiner diagnosed anxiety disorder NOS, and characterized the condition as mild. VA mental health records from 2009 to 2020 indicate that the Veteran consistently scored a “0” during depression screening tests. There is no evidence of any psychiatric treatment during this time. The Veteran was afforded an additional VA psychiatric examination in November 2020. The examiner stated a diagnosis of an unspecified depressive disorder. The Veteran reported a good relationship with his children, that he lived with his sister, and that he spent the majority of his days watching television in his room because his physical disabilities prevented him from engaging in many activities. On examination, he had symptoms of depressed mood, anxiety, low frustration tolerance, sleep impairment, and feelings of loneliness even when surrounded by other people. He was alert; oriented to person, time, place, and circumstances; attention and concentration were adaptive; memory was diminished for specific dates of events; expressive language was vague; thought process was circumstantial and required redirection; mood was euthymic, congruent with full affect; and insight and judgment were adequate. He denied suicidal and homicidal ideation and any sensory perceptual disturbances. In a June 2020 VA mental health record, the Veteran reported experiencing anxiety and stress due to the Covid-19 pandemic, but stated that he had a positive outlook on the future and denied other psychiatric symptoms. Since September 29, 2003, the Veteran’s anxiety disorder NOS caused irritability, memory impairment, episodes of anger and verbal aggression, depressed mood, low frustration tolerance, sleep impairment, feelings of loneliness, vague expressive language, and his thought processes required redirection. Given these symptoms, the Board finds that a 50 percent rating most closely reflects the severity of the Veteran’s psychiatric impairment during the entire period on appeal. 38 C.F.R. § 4.7. A rating of more than 50 percent is not warranted at any time because the Veteran had good relationships with his children and sister, had normal thought processes and communication skills, was neatly groomed, and was able to manage his financial affairs. He did not have suicidal or homicidal ideation, hallucinations, obsessive rituals, panic or depression which affected his ability to function independently, impaired impulse control, or neglect of hygiene or grooming. REASONS FOR REMAND 1. The issue of an initial rating of more than 10 percent from September 29, 2003, to December 11, 2020, and a rating of more than 40 percent since December 12, 2020, for severe lumbar myositis, status-post L4-L5 laminectomy, is remanded. 2. The issue of entitlement to TDIU since September 29, 2003, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In December 2020, the Veteran was afforded a VA back examination. The examiner indicated that the Veteran had extension from -15 to -15 degrees, indicating that he was locked in hyperextension. The examiner stated that the Veteran did not have ankylosis, however. The examiner also stated that the Veteran had forward flexion beginning at 15 degrees. The severity of the Veteran’s back disability is unclear from this examination report and the examination is inadequate. Remand is necessary to obtain a new VA examination. The issue of entitlement to TDIU is inextricably intertwined with the issue of an increased rating for the Veteran’s lumbar spine disorder and, therefore, must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Schedule the Veteran for a VA thoracolumbar spine examination to obtain an opinion as to the current nature of his low back disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.