Citation Nr: 21027081 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-05 531 DATE: May 4, 2021 ORDER A rating of more than 50 percent for an anxiety disorder, since February 6, 2017, is denied. FINDING OF FACT Since February 6, 2017, the Veteran's anxiety disorder manifested with depressed mood, anxiety, impaired memory, panic attacks more than once per week, chronic sleep impairment, nightmares, and brief, infrequent episodes of audiovisual hallucinations. CONCLUSION OF LAW Since February 6, 2017, the criteria for a rating of more than 50 percent for an anxiety disorder have not 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, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1964 to October 1967. Effective November 2015, the Veteran has a total disability evaluation based on individual unemployability ("TDIU"). In February 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). The VLJ noted the issues on appeal and engaged in a discussion with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is in the claims file. In November 2020, the Board of Veterans' Appeals (Board) assigned a 50 percent rating for the Veteran's anxiety disorder for the period of November 16, 2015 to February 6, 2017. The Board remanded the claim and directed the VA Regional Office (RO) to arrange a VA examination addressing the severity of the Veteran's anxiety disorder since February 6, 2017. The examination was completed in January 2021, and review of the completed development reveals that the RO substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating of more than 50 percent for an unspecified anxiety disorder since February 6, 2017. Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since February 6, 2017, the Veteran's anxiety disorder has been rated as 50 percent disabling under the General Rating Formula for Mental Disorders (General Formula). The General Formula provides: A 50 percent rating is warranted where the evidence shows 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; and A 70 percent rating is warranted where the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9410. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. 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. VA mental health records from 2017 to 2019 contain consistent reports of impaired memory and concentration, avoidance, intrusive thoughts, hypervigilance, irritability, anxiety, sleep disturbance, and depressed mood. During the February 2019 Board hearing, the Veteran reported difficulty completing complex tasks, anxiety attacks, difficulty socializing, decreased motivation, and depressed mood. He reported experiencing shakiness and tremors during anxiety attacks, although medication helped alleviate these symptoms. In a March 2019 VA mental health record, the Veteran reported his mood was "not too bad," although he continued to report intrusive thoughts, avoidance, and hypervigilance. The attending physician noted the Veteran's hygiene, speech, and thought processes were normal, although the Veteran's memory and concentration were impaired. In a September 2019 VA mental health record, the Veteran reported poor memory, intrusive thoughts, avoidance, hypervigilance, and nightmares several times per month. The attending physician noted the Veteran had a depressed mood with restricted affect, impaired attention, and concentration, and "fair to poor" memory. The Veteran denied auditory or visual hallucinations, suicidal or homicidal ideation, paranoia, or other psychotic symptoms. The physician noted the Veteran's hygiene, speech, and thought processes were normal and there was no evidence of delusional thinking. The Veteran continued to report shakiness but stated those symptoms were alleviated by medication. During a January 2020 VA psychiatric examination, the Veteran reported symptoms of anxiety, "shakiness," panic attacks, sleep disturbance, nightmares, visual and auditory hallucinations, and depressive episodes. However, he reported he had only experienced hallucinations on two occasions. The examiner noted the Veteran's depressive episodes were likely complicated or worsened by the Veteran's physical health problems which result in low energy. The Veteran denied homicidal or suicidal ideation and denied ever receiving inpatient psychiatric treatment. He reported seeing a psychiatrist regularly which was helpful, although he did not consider therapy sessions effective. The examiner noted the Veteran spent time at a VA medical center (VAMC) for three months because of symptoms of memory loss and loss of control of his hands and legs. The Veteran reported his wife and sons were his main support system, and he had regular contact with his family. The VA examiner noted the Veteran's symptoms included occupational and social impairment with reduced reliability and productivity. The examiner noted clinical symptoms including anxiety, depressed mood, panic attacks more than once per week, and chronic sleep impairment. The examiner also noted the Veteran had nightmares which "clouded consciousness" during middle-of-the-night awakenings. The examiner observed that the Veteran's thoughts were organized and he could manage his financial affairs. In a March 2020 VA nursing telephone note, the Veteran reported an increase in nighttime hallucinations and vivid dreams. The attending clinician advised the Veteran to stop taking Elavil (a medication used to treat anxiety) and recommended that the Veteran undergo MRI (magnetic resonance imaging). Later that month, the Veteran denied experiencing any more hallucinations since he stopped taking Elavil, and reported his mood was "good." He declined MRI testing. In a June 2020 VA telephone note, the Veteran reported an increase in visual hallucinations since his last visit. The Veteran was afforded an additional VA psychiatric examination in January 2021. During the examination, he reported symptoms including depressed mood, excessive worry, panic attacks, and sleep problems. He reported that he began taking medication for these symptoms in 2017, and since that time his symptoms had improved somewhat. He stated that since taking medication, he had improvement in social and occupational functioning, and could sleep through the night. However, he reported that he continued to have depression, anxiety, and weekly panic attacks. The Veteran reported experiencing hallucinations on at least two occasions, which he described as brief and infrequent. The VA examiner noted that people with anxiety and depression may experience periodic hallucinations which are typically brief and relate to the specific emotions. The examiner opined that the Veteran's psychiatric symptoms improved since 2017. The examiner stated the Veteran's symptoms only occasionally impaired social and occupational functioning and the Veteran generally functions satisfactorily with normal routine behavior, self-care, and conversation. Since February 6, 2017, the Veteran's psychiatric disorder manifested with symptoms of depressed mood, anxiety, impaired memory, panic attacks more than once per week, chronic sleep impairment, nightmares, and brief, infrequent episodes of audiovisual hallucinations. The preponderance of the evidence is against awarding a rating of more than 50 percent since February 6, 2017. The evidence shows that since beginning medication 2017, the Veteran's occupational and social functioning improved and he can now sleep through the night. Although the Veteran reported hallucinations in 2020, these episodes were brief and infrequent and have not significantly impacted his functioning. He continues to maintain close familial relationships, his grooming and hygiene are good, and his speech and thought processes are normal. The Veteran can manage his financial affairs and there is no indication he cannot perform activities of daily living. The appeal is denied. Vito A. Clementi 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 matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.