Citation Nr: 21023474 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-30 863A DATE: April 20, 2021 ORDER Entitlement to a disability rating in excess of 50 percent prior to April 18, 2019, and in excess of 70 percent thereafter, for panic disorder without agoraphobia is denied. REMANDED Entitlement to a disability rating in excess of 50 percent prior to March 23, 2015, a rating in excess of 60 percent from March 23, 2015 through October 13, 2015, and a rating in excess of 70 percent thereafter for left eye enucleation with right eye central serous retinopathy is remanded. FINDING OF FACT 1. During the period prior to April 18, 2019, the Veteran’s symptoms of panic disorder did not manifest with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. During the period from April 18, 2019, the Veteran’s symptoms of panic disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. At no time have the Veteran’s symptoms resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent prior to April 18, 2019 and in excess of 70 percent thereafter for panic disorder without agoraphobia 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 9412. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty for training from June 1980 to October 1980 and on active duty from September 1981 to June 2007. He had overseas service in the Southwest Asia theater of operations during the Persian Gulf War and is a recipient of the Bronze Star Medal with combat distinguishing device and the Combat Infantryman Badge, among other decorations and awards. This case comes before the Board of Veterans’ Appeals (Board) on appeal from September 2010 and October 2011 rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This case was previously remanded by the Board in June 2018 and December 2020. Entitlement to a disability rating in excess of 50 percent prior to April 18, 2019 and in excess of 70 percent thereafter for panic disorder without agoraphobia The Veteran seeks higher disability ratings for his service-connected panic disorder, currently rated as 50 percent disabling prior to April 18, 2019 and 70 percent disabling from April 18, 2019, under 38 C.F.R. § 4.130, Diagnostic Code 9412. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine 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); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9412. Turning to the evidence, the Veteran was afforded a VA examination in September 2011. The examiner noted that the Veteran had been prescribed Xanax, Celexa, and Klonopin. The Veteran reported that he had been married to his fourth wife since February of 2011. He declined to talk about his marriage. He reported getting along with his daughters from his first and second marriage. He reported not having any friends since he had been out of the military, though the examiner noted that the Veteran reported having 10-15 friends during a September 2007 examination. The Veteran reported earning an associate degree while on active duty. He reported recent work as a supervisor at a maintenance cleaning crew but stated he was fired from the position two to three months prior to the examination after a verbal altercation with his supervisor. He reported recent VA mental health treatment. The examiner found that the Veteran exhibited symptoms of anxiety and panic attacks more than once per week. The Veteran was angry throughout the interview. He reported being anxious “all the time” and unable to sit still. He also reported being depressed “quite a bit.” He denied experiencing current suicidal or homicidal ideation, and he denied a history of suicide attempts. There were no signs or symptoms of mania or hypomania and no evidence of psychosis. The Veteran endorsed panic attacks involving increased heart rate, tightness in his chest, and difficulty breathing, though he could not give an estimate as to frequency. Overall, the examiner determined that while a mental condition had been formally diagnosed, symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran was afforded another VA examination in March 2012. The Veteran reported being married with a three-week-old daughter. He reported that he did not want to be around other people. Regarding work history, the Veteran reported that he was a supervisor at a cleaning service for a couple of weeks, but he could not deal with the people and supervisors and was eventually fired, as he “blew up.” He reported being out of work for about a year. He reported anxiety attacks, during which he experienced racing heart difficulty breathing. He reported experiencing panic attacks in crowded areas and estimated that they occurred on a weekly basis. He also reported panic attacks while alone. He reported being angry and intolerant of others. He indicated he slept about three hours per night. He reported taking citalopram for PTSD and mood and clonazepam for anxiety. The examiner indicated that the Veteran experienced symptoms of panic attacks occurring weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran also reported being frequently irritable. The examiner noted that the Veteran presented with an undercurrent of hostility initially and then was uncooperative with the mental status examination, which was consequently terminated before completion. He reported feeling offended by the mental state examination. The examiner determined that the Veteran’s cognitive status was not impaired based on the questions he could answer before becoming resistant. Overall, the examiner determined that the Veteran’s panic disorder caused 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 examiner found that the Veteran’s panic disorder would “briefly” interrupt occupational performance if a panic attack should occur during his appointed work hours. The Veteran reported that the panic attacks usually resolve on their own and left him feeling drained afterward, which the examiner found may reduce his efficiency. The examiner wrote that even if the panic attacks were weekly, this would not cause significant occupational dysfunction in physical or sedentary occupations, noting that the panic attacks usually resolve in about 30 minutes. The Veteran was afforded another VA examination in December 2012. The Veteran reported residing with his fourth wife of two years and their infant daughter. He reported getting along well with his wife because she understands his difficulties. He reported spending time hitting golf balls and that he has a friend with whom he plays gold periodically. Otherwise, he reported isolating himself from others due to difficulties with anger and confrontation. He reported working at JC Penney for 18 months doing maintenance and retail tech but had difficulty relating to co-workers when he realized he could not treat others as he did while in the service. He reported that his anger outbursts had resulted in him being banned from CVS and difficulties in other situations. He reported being unemployed since August 2011. He indicated he took alprazolam as needed for panic attacks occurring approximately once per week. The examiner found that the Veteran experienced symptoms of panic attacks occurring weekly or less often and chronic sleep impairment. The Veteran reported that his panic attacks would last about 10 minutes at a time, and that they had decreased from about three times per week since he stopped working. He endorsed sleep impairment and reported sleeping only about two to three hours per night. He endorsed distressing dreams and intrusive thoughts related to killing a civilian woman and child. He also endorsed decreased sex drive and a tendency to isolate himself from others. He denied having any suicidal or homicidal ideation or intent. Overall, the examiner determined that the Veteran’s panic disorder without agoraphobia caused 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 examiner noted that although the Veteran experienced conflict with others due to his anger and irritability and authoritative manner of interacting, it did not appear that he was unemployable. The examiner suggested that the Veteran would likely be able to maintain employment in a position that involved limited contact with others. The Veteran was afforded another VA examination in October 2015. The examiner noted that the Veteran was still married to his fourth wife, and that they had a three-and-a-half-year-old daughter. He reported having a friend with whom he played golf who was a godparent to his daughter. He reported positive relationships with his wife and children. The Veteran reported that he had not worked since 2011. He reported being prescribed alprazolam for his anxiety. He described his anxiety as beginning with difficulty breathing and a prickling feeling in his extremities, then rapid heartbeat, weakness, and heaviness in the legs. He reported that panic attacks would come out of nowhere and could not give a specific frequency, but that the last one was about three months ago, and he went to the emergency room as he felt like he could not breath. The examiner indicated that the Veteran had symptoms of panic attacks occurring weekly or less often. The examiner indicated that the Veteran was cooperative and provided relevant information about his condition. The Veteran did not report or display any psychotic symptoms, and he did not voice suicidal or homicidal ideations or intent. Overall, the examiner found that the Veteran’s panic disorder resulted in 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 examiner noted that the Veteran’s panic disorder alone may contribute to occasional disruption in work-related tasks if he should have a full-blown panic attack while at work. However, this would not cause impairment in his functioning, as his panic attacks were infrequent and short-lived. The Veteran was most recently afforded a VA examination in April 2019. The Veteran reported that he had been married to his current wife for eight years. Of his social relationships, the Veteran stated, “I don’t deal with people.” He reported that he had to stop playing golf due to neck-related issues. He reported that he had not worked since 2011. He stated that his last job was with a cleaning company, and that he was fired after the company was bought out, after which he received unemployment benefits for two years. He reported that he had received individual psychotherapy for his disability. He denied a history of suicide attempts or ideas or plans at the time of examination. He endorsed chronic sleep impairment, reporting that he sometimes wouldn’t sleep for three days. He endorsed feeling watchful or on guard on a daily basis, as well as recurrent thoughts about an operation during which he killed a woman and her child. He endorsed experiencing “a lot” of nightmares, and that he felt estranged from people. The examiner found that the Veteran had symptoms of anxiety, suspiciousness, 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 examiner noted that the Veteran was appropriately groomed and was oriented to person, place, time, and situation. His affect was anxious. He was hypervigilant. He displayed no abnormal involuntary motor movements, and his speech was of normal rate, tone, and volume. His thought process was logical and coherent. There was no evidence of psychosis or delusional thinking. The Veteran denied suicidal or homicidal ideation. He exhibited adequate insight and judgment. Overall, the examiner determined that the Veteran’s panic disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. VA treatment records show the Veteran underwent a psychiatry initial assessment in March 2011. He reported taking alprazolam for anxiety. He described anxiety symptoms of fast heart rate and shortness of breath that decreased when he was on medication. The Veteran reported waking up constantly during the night and his wife reported that he would wake up screaming and jumping. He reported being hypervigilant and guarded. His mental status examination was normal, and he denied suicidal ideation, intent, or plan. His affect was agitated. During a July 2011 psychiatric assessment, the Veteran reported being unable to deal with people or stress. He reported chronic sleep trouble, with nightmares about four times per week, from which he would wake up screaming and fighting. He described symptoms of hypervigilance and avoidance. He also reported emotional numbness, irritability, sadness, and a foreshortened future. He reported multiple visits to the emergency room for perceived heart attacks that were actually panic attacks. Subsequent VA treatment records show the Veteran declined mental health counseling on multiple occasions, but they confirm multiple visits to the emergency room for panic attack symptoms. Overall, after careful review of the evidence of record, the Board finds that the frequency and severity of the Veteran’s panic disorder symptoms during the period on appeal do not warrant higher disability ratings. The weight of the competent and credible evidence shows that during the period prior to April 18, 2019, the Veteran’s symptoms have been only moderate, generally at the level that would warrant either a 30 or 50 percent rating. At no time prior to April 18, 2019 was the Veteran ever found to have symptoms of sufficient severity that they would cause occupational and social impairment with deficiencies in most areas. A 70 percent rating contemplates a more severe level of occupational and social impairment that is not demonstrated during the period prior to April 18, 2019. The record does not show that the Veteran engaged in obsessional rituals which interfered with routine activities; that his speech was intermittently illogical, obscure, or irrelevant; or that he exhibited spatial disorientation or neglect of personal appearance and hygiene. The Veteran has always been found to be alert and oriented, and there is no indication that the Veteran has had any memory impairment or difficulty with speech, hygiene, or activities of daily living. While the Veteran has problems with irritability and anger, he has maintained positive family relationships, and there is no indication that he has ever been violent or had grossly inappropriate behavior. The Veteran also has never had any hallucinations or delusions. The Veteran expressed feelings of sadness and a foreshortened future, but he has repeatedly denied any suicidal ideation or intent. The Veteran has never been found to be suicidal or at risk of harming himself or others. While the evidence indicates that the Veteran suffered from angry, irritable moods and anxiety with panic attacks, there is no evidence of near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively. The evidence clearly shows that his panic attacks, while problematic, occur only intermittently, and there is no indication of panic that was near-continuous and preventing him from performing activities of daily living. Critically, to the extent that symptoms more consistent with a 70 percent rating have been shown, such as difficulty in adapting to stressful circumstances, the record fails to demonstrate that such symptoms have led to an overall level of occupational and social impairment contemplated by the 70 percent rating. For example, the Veteran reported having generally good relationships with family members and did not show in an inability to establish and maintain effective relationships. The Board finds that taken into the context of the Veteran’s overall social functioning at this time, the severity, frequency, and duration of his symptoms and overall psychiatric picture are comparable to the symptoms indicated for a rating of 50 percent. The Board therefore finds that the types of symptoms that the Veteran has manifested prior to April 18, 2019 are significant, but they are not of the severity, frequency, or duration that would indicate that a higher rating of 70 percent is warranted. Additionally, the Board finds that the Veteran’s symptoms do not warrant a maximum 100 percent disability rating at any point during the period, including the period from April 18, 2019. As previously discussed, a 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Based on the evidence set forth above, the Board does not find that these criteria have been met and finds that the currently assigned 70 percent rating adequately captures the Veteran’s disability picture for the period from April 18, 2019. The record is silent for reports of grossly inappropriate behavior, disorientation, memory loss, or inability to perform activities of daily living. While the evidence indicates that the Veteran’s symptoms cause occupational and social impairment, the evidence simply does not demonstrate that the Veteran is “totally” impaired due to his panic disorder. In short, the evidence does not show the Veteran’s panic disorder is of such severity to warrant entitlement to a maximum 100 percent disability rating. Therefore, the Veteran’s claim for a disability rating in excess of 70 percent for the period from April 18, 2019 is denied. The Veteran is competent to report on his symptomatology as he observes them, and the Veteran’s reported symptoms throughout his treatment records and examinations are consistent with the ratings already assigned. The Board has also considered the Veteran’s symptoms which are not included in the rating criteria listed under 38 C.F.R. § 4.130 and whether they constitute symptoms that would be comparable in type and degree (frequency, severity, and duration) to the criteria for a 100 percent rating since April 18, 2019. See Mauerhan, 16 Vet. App. at 443. The Veteran has been noted to have nightmares, hypervigilance, and sleep impairment, which have occurred with significant frequency and severity. Although these symptoms are significant, the Board does not find that they are of a comparable severity to the very extreme symptomatology required for a rating of 100 percent. The Board also acknowledges that the increased 70 percent rating was assigned an effective date of April 18, 2019 based on the date of the April 2019 VA examination. The effective date for an increased rating should be based on the medical evidence showing when the increase in the level of disability actually occurred. See 38 C.F.R. § 3.400(o)(2). Effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Board has reviewed all of the evidence of record, but there is no indication in the VA treatment records, Veteran’s statements, or any other documented evidence that the Veteran’s disability underwent an increase in severity that would allow for a 70 percent rating prior to April 18, 2019. In the absence of any evidence indicating that the Veteran’s psychiatric disorder had undergone a worsening prior to April 18, 2019, the Board is unable to assign an earlier effective date for the increase. In sum, the Board finds that a rating higher than 50 percent prior to April 18, 2019, and higher than 70 percent thereafter are not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against a rating higher than 70 percent, that doctrine is not applicable. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to a disability rating in excess of 50 percent prior to March 23, 2015, a rating in excess of 60 percent from March 23, 2015 through October 13, 2015, and a rating in excess of 70 percent thereafter for left eye enucleation with right eye central serous retinopathy The Veteran’s claim for increased ratings for his service-connected eye disability must be remanded to obtain outstanding records. In its prior remand directives, the Board instructed the AOJ to obtain documents that had not been associated with the claims file but which could be accessed through the VistA imaging system, including records of an April 2018 eye ocular coherence tomography consultation. The AOJ obtained and associated some of those records with the claims file, but the April 2018 ocular coherence tomography consultation report is still unavailable for review. Therefore, another remand is necessary to attempt to obtain the outstanding record. The matters are REMANDED for the following action: 1. Attempt to obtain a copy of the April 9, 2018 eye ocular coherence tomography consultation report, available through VistA Imaging. Any negative result should be noted in the record and communicated to the Veteran. 2. Obtain all VA treatment records since January 2021. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.