Citation Nr: 21028196 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-35 575 DATE: May 10, 2021 ORDER A 70 percent rating, but no more, for a generalized anxiety disorder prior to August 8, 2016, is granted, subject to the payment of monetary benefits. The appeal of a rating in excess of 70 percent for a generalized anxiety disorder since August 8, 2016, has been withdrawn. FINDINGS OF FACT 1. The Veteran had active duty from March 1987 to August 2007; she has been 100 percent disabled since February 2015. 2. Prior to August 8, 2016, a psychiatric disorder was manifested by near daily panic attacks, anxious mood, chronic sleep impairment, depression, disturbances of mood, difficulty establishing and maintaining effective work and social relationship, and suicidal ideation. 3. The Veteran submitted correspondence on April 10, 2021 clearly indicating she wished to withdraw the issue of a rating in excess of 70 percent for a generalized anxiety disorder since August 8, 2016. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no more, for a generalized anxiety disorder prior to August 8, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9400 (2020). 2. The criteria for withdrawal of a rating in excess of 70 percent for a generalized anxiety disorder since August 8, 2016, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2021 correspondence, the Veteran waived initial review of documents added to the claims file after the last supplemental statement of the case (SSOC) by the agency of original jurisdiction (AOJ), requesting they be reviewed by the Board in the first instance. In that same correspondence, she also requested part of the remaining issue on appeal be withdrawn, which will be discussed below. Additionally, for the issue of a rating in excess of 30 percent for an psychiatric disorder prior to August 8, 2016, the Veteran requested either that her appeal be granted, or she be notified that it would not be so she could withdraw the claim. Whether this constitutes a valid conditional withdrawal is moot, as the Board is granting an increase rating for the period on appeal. Further, the Veteran submitted a February 2020 statement indicating she wished to withdraw the appeal dated February 24, 2015, which included the issue of increased rating for a psychiatric disorder. However, her representative filed a brief in January 2021 that did not reflect a desire to withdraw, and the April 2021 correspondence specified what part of her remaining appeal she wished to withdraw. Given the specificity of the April 2021 correspondence, it controls in making this determination. Finally, the Veteran's representative inquired in an April 2019 brief whether the VA examiner who conducted the November 2014 and August 2016 VA examination had a current license. As the issue of a rating for that period is being granted, there is no prejudice to the Veteran in proceeding to adjudicate the appeal. Withdrawal In an April 2021 correspondence, the Veteran indicated that she wanted to withdraw the appeal for a rating in excess of 70 percent since August 8, 2016. This withdrawal was clear and unambiguous. No further correspondence was received from the Veteran asserting that she did not understand the consequences of the withdraw. Based on the above, she expressed her intent to withdraw the claim in April 2021. As such, the claim is withdrawn. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence, a November 2014 VA examiner diagnosed the Veteran with a generalized anxiety disorder, and found that she had symptoms of anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment resulting in occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. However, the Veteran also told the examiner that she had panic attacks twice per week, had to check and recheck the locks on the doors at night, and had recurrent thoughts of death and suicidal ideation, but had no attempts. In December 2014 correspondence, the Veteran stated she had panic attacks nearly every day, and at best multiple times per week, that she worried about illogical things and had to leave the office for a period of time to calm down. She reiterated that she experienced suicidal ideation, and that the November 2014 VA examiner's recitation of her symptoms did not match what she actually said during the examination. In a February 2015 notice of disagreement (NOD), she stated that she had panic attacks multiple times per week, trouble sleeping, had to check and recheck doors and windows, and was unemployed for five months the prior year because she found out companies had been told she was difficult and emotional. She again stated that she had suicidal thoughts frequently during that time. She reiterated these symptoms in a September 2015 Form 9, adding that she had lots of trouble with work and family relationships, and that her anxiety was almost paralyzing daily. The August 2016 VA examination that precipitated the increase to 70 percent showed that the Veteran complained of nearly the same symptoms. The August 2016 VA examiner noted symptoms of anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, resulting in occupational and social impairment with reduced reliability and productivity. The Veteran reported that she had difficulty getting and staying asleep, checked the locks on her doors several times per night, had panic attacks twice per week, and that some days she had recurrent thoughts of death, suicidal ideation, and stated that she had thoughts that her children would be better off without her, but with no plan or attempts. She also said that in the year prior, she began working from home which reduced her level of anxiety. A review of the clinical records does not reflect any psychiatric treatment between the examinations. Although the examiners assessed different levels of overall functional impairment, the disability picture reported by the Veteran during each examination did not appear to change drastically. Here, the Veteran has endorsed suicidal ideation each time she was evaluated since she filed a claim for increase. That she reported it in both the November 2014 and August 2016 VA examinations reinforced that it was present throughout the appeal period. Additionally, in lay statements submitted between the examinations, her stated symptoms and their impact remained consistent. Further, during the August 2016 VA examination, the Veteran reported that her level of anxiety improved in the prior year since working from home. The examiner indicated the Veteran had difficulty establishing and maintaining effective work relationships but given her report this would be most evidence in 2014 and 2015 prior to her working at home, which reduced her symptoms. All in all, the August 2016 VA examination showed a continuation of the symptomatology reported in the November 2014 VA examination and in intervening lay statements, particularly continued suicidal ideation. Thus, resolving reasonable doubt in her favor, a 70 percent rating is warranted prior to August 2016. A rating in excess of 70 percent, however, is not warranted, as at no point for the period on appeal, has the medical record shown 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Similarly, the Veteran continued working from either in the office or from home for most of the appeal period, and maintained some social relationships with family members, such that a psychiatric disorder did not cause total functional or social impairment. As such, a 70 percent rating, but no more, is granted prior to August 8, 2016. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, Associate 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.