Citation Nr: 21029950 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-09 390 DATE: May 17, 2021 ORDER Throughout the rating period on appeal, a rating of 50 percent, but no higher, for generalized anxiety disorder (GAD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's generalized anxiety disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, panic attacks, chronic sleep impairment, mild memory loss and cognitive difficulties, and difficulty adapting to stressful circumstances, including work or a work like setting. 2. The Veteran's service-connected tinnitus, bilateral hearing loss, and generalized anxiety disorder have precluded gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but no higher, for generalized anxiety disorder have been met throughout the rating period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9400. 2. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1951 to October 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 30 percent disability rating for generalized anxiety disorder (GAD) and denied entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2018. A copy of the transcript has been reviewed and associated with the claims file. In a June 2018 decision, the Board denied entitlement to a TDIU and a rating in excess of 30 percent for generalized anxiety disorder. The Veteran appealed to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Partial Remand (JMR). The JMR was granted by CAVC in a January 2019 order. These matters were before the Board in July 2019 and April 2020 and remanded for additional evidentiary development on each occasion. The Board notes that the VA sent a letter to the Veteran in April 2020 requesting information regarding any private treatment records. In response, the Veteran submitted a signed release but did not identify any private treatment. Accordingly, the Board will proceed with adjudicating the pending claims. 1. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder (GAD) Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 283 (1991). Although the Veteran's entire history is reviewed when assigning a disability rating pursuant to 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, the Veteran filed a claim for an increased rating for his service-connected GAD in August 2012. He has been assigned a 30 percent disability rating pursuant to Diagnostic Code 9400. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is assigned when there is evidence of 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400. A 50 percent disability rating will be assigned where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating applies when occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned when there is 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. Id. Turning to the evidence of record, the Veteran underwent a VA examination in March 2013, at which time he was assessed with GAD. The examiner noted that his anxiety was exacerbated by his physical symptoms but was well controlled with medication. He was dependent upon Lorazepam to control his anxiety and required the medication when he felt that his anxiety was increasing. The examiner concluded that with medication he was able to maintain adaptive social relationships without any noted impairment. The Veteran's VA treatment records reveal his continuous treatment with Dr. T. at the VA. Dr. T. renewed his medication and continued to note his diagnosis of GAD. The Veteran was afforded a subsequent VA examination in February 2015. At that time, he was assessed with GAD and noted his continued anxiety and worry about most things, including his physical health, racing and ruminative thoughts, frustration with his medical issues, and occasional anxiety attacks where he felt out of control and required his prescribed Lorazepam. He reported occasional ruminative stressful thoughts that cause delayed sleep onset. The Veteran submitted a mental health questionnaire by his VA treating psychiatrist, Dr. T., in July 2016. Dr. T. diagnosed the Veteran with GAD and posttraumatic stress disorder (PTSD) and noted that he had total occupational and social impairment due to his PTSD. His psychiatric symptoms consisted of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, memory loss for names, flattened affect, circumstantial speech, speech intermittently illogical, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessional rituals, impaired impulse control, spacial disorientation, persistent delusions, neglect of personal appearance, intermittent inability to perform activities of daily living (ADL), and disorientation to time or place. The Veteran underwent a VA examination in September 2019, at which time he was assessed with GAD and the examiner noted that he did not have more than one mental disorder. He was currently taking Ativan and his symptoms included depressed mood, anxiety, and disturbances of mood and motivation. The Veteran reported that he experienced daily irritability and preoccupation with worry and panic, which impaired his social and occupational functioning. He indicated that mornings were very difficult and described his emotional state as down and blue. The examiner characterized the disability picture as involving 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. In December 2019, it was noted that he had no recent anxiety attacks and was prescribed Ativan. Lastly, the Veteran was afforded a VA examination in February 2021. The Veteran reported that he experienced frequent episodes of road rage but was able to contain himself inside of his vehicle. His symptoms of GAD included anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, and difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner indicated that his ability to function in an occupational setting was impaired by his GAD given his cognitive difficulties such as short-term memory, sleep disturbance, and panic attacks. The examination report indicated that the Veteran lived with his brother and their relationship was "okay." He was single but open to a relationship with the right person. He reported a wonderful relationship with his son. For leisure he would read, get coffee and walk through a store, and watch DVDs. The examiner reviewed the February 2016 questionnaire by Dr. T. He indicated that Dr. T. provided no basis for his PTSD diagnosis and there was no mention of a PTSD diagnosis in Dr. T.'s treatment records for the Veteran. Furthermore, when the examiner was questioned about whether he had experienced, witnessed, or learned of a traumatic event as he described in the diagnostic criteria for PTSD pursuant to DSM-5, he did not report anything that would meet Criterion A requirements. PTSD can only be diagnosed when Criterion A was met. Accordingly, the examiner concluded that the Veteran did not have a diagnosis of PTSD. Moreover, the examiner indicated that the symptoms endorsed by the February 2016 questionnaire were not contained in his correlating medical records. For example, VA treatment records from July 2016 reveal that he denied any pervasive sad mood, but depressed mood was indicated on the questionnaire. Moreover, there was no explanation of obsessional rituals which interfered with routine activities, impaired impulse control, spatial disorientation, or disorientation to time or place reflected anywhere in the treatment records, despite what was noted on the questionnaire. After a review of the evidence, the Board finds that a 50 percent disability rating is warranted for the Veteran's GAD for the entire period on appeal, or from August 2012. In this regard, the Veteran's GAD symptoms include anxiety, dependence on medication, panic attacks, ruminative stressful thoughts that cause delayed sleep onset, disturbances of mood and motivation, chronic sleep impairment, mild memory loss, and difficulty adapting to stressful circumstances. As such, the Board finds that these symptoms correlate to occupational and social impairment with reduced reliability and productivity, i.e., a 50 percent evaluation. The Board further finds that a rating in excess of 50 percent for the Veteran's service-connected GAD is not warranted at any time during the rating period on appeal. In this regard, the Board acknowledges the July 2016 questionnaire by Dr. T., which indicates that the Veteran had total occupational and social impairment due to PTSD. However, the Board finds that the Veteran is not service-connected for PTSD and there is no indication, other than this questionnaire, that he has a diagnosis of PTSD. Moreover, as pointed out by the February 2021 examiner, the symptoms endorsed in the February 2016 questionnaire are inconsistent with his treatment records from Dr. T. Furthermore, as pointed out by the March 2013 and February 2015 examiners, the Veteran lives with his brother and socializes with friends and family members. He described having a wonderful relationship with his son. There is no evidence that the Veteran has suicidal or homicidal ideations, obsessive rituals, speech intermittently illogical or obscure, near-continuous panic or depression, spatial disorientation, neglect of personal hygiene, or the inability to establish and maintain effective relationships. Although he has difficulty adapting to stressful circumstances, there is no evidence that his symptoms reach the level of occupational and social impairment with deficiencies in most areas to warrant a higher 70 percent rating. In sum, the Board finds that the totality of the evidence shows that the disability picture for the Veteran's GAD warrants a 50 percent rating for the entire period on appeal. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. In the present case, the Veteran filed a claim of entitlement to a TDIU and increased rating for his service-connected GAD in August 2012. From August 2012, the Veteran was service-connected for GAD, duodenal ulcer and associated osteoporosis, bilateral hearing loss, tinnitus, a lumbar spine disability, and anal fissure. In the decision herein, the Board has awarded a 50 percent disability rating for his service-connected GAD, which brings the combined overall rating to 70 percent or more for the relevant time period. Thus, he meets the threshold set forth under 38 C.F.R. § 4.16(a). The Veteran submitted a VA Form 21-8940 in September 2012 and indicated that he became too disabled to work in 2008. He worked from 1960 to 1992 as a printer and from 1992 to 2008 as a bus driver. He was a high school graduate. The Veteran testified at the hearing in March 2018 and indicated that he had to quit his job as a bus driver due to his anxiety. On several occasions he believed that he was endangering his students and when he suffered an anxiety attack it would render him immobile. He also had difficulty in mass conversation due to his hearing loss. The Veteran underwent a VA examination in February 2015, at which time the examiner noted that his hearing loss and tinnitus impacted his ability to work given his difficulty in listening situations. The Veteran was afforded a VA examination in September 2019, at which time the examiner noted that his GAD symptoms included irritability and preoccupation with worry and panic, which impaired his social and occupational functioning. During a subsequent February 2021 examination, the Veteran reported frequent episodes of road rage. His GAD symptoms included mild memory loss such as forgetting names, directions, or recent events and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner concluded that his ability to function in an occupational setting was impaired by his GAD symptoms, including cognitive difficulties such as short-term memory and sleep disturbances and panic attacks, which would interfere with his attendance as well as the quality of his work performance. Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that his service-connected GAD, hearing loss, and tinnitus preclude him from maintaining substantially gainful employment that is consistent with his education and occupational experience. In this regard, the Veteran was employed as a bus driver for almost 20 years. He indicated that he suffered panic attacks, which would render him immobile. This was confirmed by the February 2021 examiner who concluded that his panic attacks would interfere with attendance and quality of work performance. Moreover, his cognitive difficulties such as short-term memory would interfere with completing tasks, including forgetting names, directions, or recent events. Lastly, there is also indication that his hearing loss and tinnitus would interfere with his communication. Based on his mental impairments and hearing loss and tinnitus, the Board finds that the Veteran is precluded from working as a bus driver or a similar work setting. (Continued on the next page) In light of the above evidence, the Board finds that the Veteran is not capable of substantially gainful employment due to his service-connected GAD, tinnitus, and hearing loss. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.