Citation Nr: 21026736 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-55 093 DATE: May 3, 2021 ORDER Entitlement to an initial 70 percent rating for unspecified anxiety disorder, but no higher, is granted from September 12, 2015. FINDING OF FACT The Veteran's unspecified anxiety disorder most nearly approximates occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent rating for unspecified anxiety disorder, but no higher, are met from September 12, 2015. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Codes (DCs) 9413-9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 2010 to September 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, in pertinent part, the Board denied the Veteran's increased rating claim. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2020, the Court granted the parties' Joint Motion for Partial Remand (JMR) to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. Additional evidence has been associated with the record that has not been considered by the AOJ, to include a February 2021 VA examination report. In a March 2021 letter, the Veteran's representative waived AOJ consideration of the evidence submitted with that letter and the February 2021 VA examination report. Finally, the issue for entitlement to a total disability rating based on individual unemployability (TDIU) was raised as part and parcel to the Veteran's increased rating claims for the Veteran's dizziness and/or anxiety disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, the Veteran formally requested entitlement to TDIU and that the issue be withdrawn under the Legacy system and adjudicated under the Appeals Modernization Act (AMA) review system. See October 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; see also September 2020 VA Form 20-0996, Request for Higher-Level Review and September 2020 VA notification letter. Thus, the Board does not have jurisdiction to address the issue of TDIU under the Legacy system. As such, the issue of entitlement to TDIU will not be further addressed in this decision. The Veteran's unspecified anxiety disorder is currently rated 30 percent disabling. He asserts that throughout the entire appeal his unspecified anxiety disorder has been more severe than the currently assigned rating and that he is entitled to an increased rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the evidence demonstrates distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. By way of background, the current appeal period begins on September 12, 2015, the date service connection was established. The Veteran's unspecified anxiety disorder is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DCs 9413-9440. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for anxiety disorder when 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, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. A 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces 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 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 total occupational or 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. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) In the July 2020 JMR, the parties determined that the September 2019 Board decision failed to address the Veteran's report of suicidal ideation in March 2015 and the Veteran's report of social anxiety and social avoidance. Further, the parties determined that the Board erred by failing to explain how it determined that the Veteran's memory loss was mild, as the Veteran reported severe forgetfulness during his December 2018 VA examination. As the Court noted no other deficiencies in the record, and for the sake of judicial economy, the Board hereby incorporates all other facts and analysis of the vacated September 2019 Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). After a review of the medical and lay evidence, the Board finds that the criteria for a higher rating of 70 percent are met throughout the appeal, effective September 12, 2015. The evidence shows that the Veteran's unspecified anxiety disorder produces deficiencies in most areas due to such symptoms as: suicidal ideation, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, severe forgetfulness, poor concentration, panic attacks, disturbances of motivation and mood, low self-esteem, isolation, irritability, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) ("the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."). Conversely, the Board finds that the Veteran's symptoms do not more nearly approximate a rating of 100 percent, as they are not of such a severity or frequency to result in total occupational and social impairment. In this regard, there is no medical or lay evidence in the record of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for own occupation, or own name. Notably, none of the VA examiners found the Veteran to be totally occupationally and socially impaired. The February 2021 VA examiner described the Veteran as well-groomed, cooperative but with a sarcastic tone at times, with appropriate speech, and he was oriented to person, place, time, and situation. As to social impairment, the Veteran endorsed markedly diminished interest and participation in activities, social withdrawal, and feelings of detachment or estrangement from others, during his September 2014 VA examination. In an October 2016 correspondence, the Veteran reported that he has "no desire to meet new people, be around others, or engage in normal social environments." The Veteran has described his marriage as good. His wife has reported that the Veteran prefers to stay at home. She also reported that the Veteran can only spend time around a few friends who are calm enough not to overwhelm him and understand his condition. The Veteran spends most of his time watching television and movies and, on the computer, but overall has a loss of interest in things. Thus, the Board notes that the Veteran maintained a relationship with his wife and otherwise demonstrated an ability to maintain some social relationships, despite significant, social impairments due to symptoms described above. Regarding occupational impairment, the Veteran has a bachelor's degree in Human Biology, but does not currently have a job. The October 2018 VA examiner determined that the Veteran's unspecified anxiety disorder caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks during periods of significant stress. See also February 2021 VA examination report. The Veteran has reported feelings of anxiety about working in a hostile work environment. As noted above, the issue of entitlement to a TDIU is not presently before the Board. With respect to the symptomatology considered under the 100 percent rating, the Veteran has consistently denied suicidal or homicidal ideation at all of his VA examinations and treatment sessions during the appeal period. See e.g. March 2016, July 2020 VA treatment records. In making such determination, the Board is cognizant that the Veteran has reported suicidal ideation in March 2015, prior to the appeal period. Additionally, in an October 2016 correspondence, the Veteran reported suicidal thoughts, but with no definite plan, a couple of times per month. During his October 2018 VA examination, the Veteran denied being involved in a physical altercation as an adult. The February 2021 VA examiner determined that the Veteran's suicide risk level was not at an elevated acute risk. Thus, the Board does not find the Veteran to be a persistent danger to himself or others. Further, the Veteran has reported that he maintains his own hygiene but does not perform activities of daily living such as shopping, driving, or cleaning. See October 2016 Correspondence. Further, he reported that his wife drives him, takes care of the bills, and performs all household responsibilities. The Veteran also indicated that he could assist his wife with these responsibilities if tasks were completed in a short time frame. Notably, all VA examiners have determined that the Veteran is capable of managing his own financial affairs. The Board finds that the Veteran's periods of neglect of chores and household duties is contemplated by a 70 percent rating, as he does not show intermittent inability to perform activities of daily living that is characteristic of a 100 percent rating. The Board has considered the evidence of record, including the VA examination reports, VA treatment records, and lay statements. Even with a holistic analysis, the Board does not find that the criteria for a 100 percent rating for unspecified anxiety disorder are met. As such, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine therefore does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, a higher rating is not warranted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.