Citation Nr: 21030155 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-38 330A DATE: May 18, 2021 ORDER Entitlement to a rating of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder from August 6, 2008, to June 21, 2013, is granted. Entitlement to a rating in excess of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed her initial claim for an increased rating for generalized anxiety disorder on August 6, 2008; the Board, in its prior decision, granted a 70 percent rating from the initial date of an increase. 2. For the period on appeal, the Veteran's generalized anxiety disorder has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder have been met from August 6, 2008. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for a disability rating in excess of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9400 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2013 and September 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, this appeal previously came before the Board in December 2019, at which time the Board granted a rating of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder (anxiety disorder) prior to August 23, 2017, but declined to grant a rating in excess of 70 percent for that disability for any period on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in January 2021 the Court issued a joint motion for partial remand (JMPR) which vacated the Board's prior decision regarding a rating in excess of 70 percent for her anxiety disorder, and remanded that issue to the Board for further appellate review. Notably, the JMPR did not contest the Board's award of a 70 percent rating for the anxiety disorder prior to August 23, 2017, and that portion of the Board's prior decision remains in effect. Further, pursuant to the JMPR, the parties agreed that the Board erred when it failed to consider entitlement to TDIU as part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has included that issue as part of this decision. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). "Where there is a question as to which of two evaluations shall 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." 38 C.F.R. § 4.7. 1. Entitlement to a rating of 70 percent for generalized anxiety disorder with panic attacks and major depressive disorder from August 6, 2008, to June 21, 2013 As an initial matter, the Board, will correct an error on the part of the RO which occurred following its most recent decision in this matter. In its prior decision, the Board granted a 70 percent rating for an anxiety disorder "prior to August 23, 2017." Following the Board's grant, the RO issued a rating decision in December 2019, which granted the increased rating effective June 21, 2013, which it stated was the date of the Veteran's claim for an increased rating. In fact, the Veteran filed a claim for an increased rating on August 6, 2008, requesting an increased rating for her anxiety disorder. The RO did not immediately develop that claim. The Veteran later filed statements in support of her claim in October 2012, and June 2013. However, the claim itself dates to August 6, 2008, as evidenced by the November 2013 rating decision from which this appeal originates. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date which the entitlement arose, whichever is later. See 38 U.S.C.A. §; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In this case, the Veteran filed her increased rating claim on August 6, 2008. That the RO failed to develop the claim between August 2008 and June 2013, is no fault to the Veteran, and the Board certainly did not limit its grant of an increase to June 2013. Although the Veteran has not explicitly appealed the date assigned for the increase in the December 2019 rating decision, the Board finds that the RO's implementation of its prior decision was incorrect, and will grant the 70 percent rating for an anxiety disorder effective August 6, 2008, the date of the Veteran's initial claim for an increased rating. 2. Entitlement to a rating in excess of 70 percent for generalize anxiety disorder with panic attacks and major depressive disorder The Veteran's anxiety disorder is rated as 70 percent disabling from June 21, 2013, the date of her claim for an increased rating. She seeks a rating in excess of 70 percent. The Board finds that the claim should be denied. The Veteran's anxiety disorder is rated under Diagnostic Code (DC) 9400, which compensates for generalized anxiety disorder, and applies the General Rating Formula for Mental Disorders. Under the applicable rating criteria, a 70 percent rating is assigned for 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9400. 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; memory loss for names of close relatives, own occupation, or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Here, the Board notes that in the JMPR, the parties did not seem to explicitly object to the 70 percent rating assigned on a schedular basis in the Board's prior decision. Rather, the objection to the claim on appeal focuses on the Board's failure to consider entitlement to TDIU as part and parcel of that claim. Nonetheless, the increased rating issue has been reversed and remanded and the Board will reconsider entitlement to a total disability rating on a schedular basis. The Veteran has received regular psychiatric care through VA throughout the appeal period. Treatment records indicate that the Veteran reported anxiety, depression and sleep impairment. She took medication for her symptoms. In November 2012, the evidence indicated she was homeless. She denied suicide attempts and the examiner found no evidence of suicidal ideation or homicidal ideations. She did not have audio or visual hallucinations and she was fully oriented. In December 2014, she reported having some suicidal thoughts in 2008. In September 2014, VA treatment notes noted she missed work due to being depressed. Other symptoms reported are daily depressed mood, insomnia, intermittent anxiety, low energy, poor appetite, and poor concentration. In November 2013, she was afforded a VA examination in connection with her increased rating claim. She reported chronic anxiety, sleep disturbance, difficulty being in crowded or noise environments, fear of new situations, irritability, depressed mood, and loss of energy. The examiner found occupational and social impairment with occasional decreased in work efficiency. The Veteran currently worked as a contract specialist. She reported a good relationship with her mother and some of her siblings. She had been married and divorced, has a roommate, and has friends she goes out to eat with. She goes to church and had some hobbies. The examiner found there was depressed mood, anxiety suspiciousness, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner also noted unprovoked irritability without violence. In a March 2015 letter, the Veteran's clinical social worker reported that the Veteran's symptoms included severe depression, anxiety, irritability, insomnia, and loss of energy. Other symptoms included inability to concentrate and mood swings. There had been a significant decline in social and occupational functioning. She is withdrawn and is unable to trust her peers. July 2015 VA treatment records indicate the Veteran also reported increased anxiety and difficulty adapting to stress situations. The Veteran reported audio and visual perception disturbances during this same treatment date. The medical examiner also reported that the Veteran's mental status exam showed decreased cognition. Vet Center records showed treatment from 2015 to 2016. In August 2015, the Veteran reported suicidal thoughts with a plan. There were no homicidal ideations. She was socially isolated. The examiner found there was appropriate speech, normal memory, good judgment, no delusions or hallucinations, but noted the Veteran was not fully oriented. In 2016 records, the Veteran was better now that she was living with her sister, near her family and her home church. In a 2017 letter from the Veteran's Vet Center provider, it was noted that in 2015 and 2016, there was sever anxiety and depression. After working at her job for several months, the Veteran stated she had resigned at the direction of her doctor, who advised her to do so because the stress of working and the commute were affecting her health. In an August 23, 2017 VA examination report, the Veteran reported persistently down and depressed mood with recurrent episodes of major depression, inability to experience positive mood reactivity, isolative coping behaviors, poor concentration, psychomotor retardation, altered sleep pattern of insomnia and hypersomnia, neglect in basic activities of daily living, frequent crying spells, ruminative thinking patters that are worry and anxiety based triggering frequent and severe panic attacks, feeling paralyzed with persistent anxiety, and an inability to maintain effective relationships except with one sister. The Veteran reported difficulty securing of maintaining gainful employment resulting in periods of homelessness, living in a shelter, and relying on family. She completed a college program but was unable to pass the licensing examination due to anxiety. Her longest period of employment was as a contract specialist, however, she has not been gainfully employed since 2015. The examiner noted the following symptoms: depressed mood; anxiety; panic attacks more than once per week; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; difficulty in establishing and maintaining effective work and social relationships, and in adapting to stressful circumstances; and neglect of personal appearances and hygiene. Additionally, the examiner noted mild psychomotor slowing, and a tearful affect, a markedly flat congruent with depressed mood. There was no evidence of tangential thought process, loose association, or psychotic symptoms, including hallucinations, or paranoid ideation. She denied suicidal or homicidal ideations. The examiner found there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In VA treatment records dated from 2017 through the present, there were significant psychiatric symptoms, but not suicidal and homicidal ideations. Additionally, she retained some social functioning. In a November 2017 VA treatment record, there was fair grooming and hygiene, normal speech, logical thought processes, fair insight, and fair judgment. She reported past suicidal ideations, which were fleeting, but denied any plans or actions, which last happened one year prior. For example, in a September 2018 VA record, there were no suicidal or homicidal ideations, or hallucinations. She was the caretaker of her mother. The Veteran's sister and brother in law watched after her. She lived with her sister. In a December 2018 VA record, the Veteran reported she was in the process of adopting her cousin's children, and was rebuilding her relationship with her adult son. She reported significant anxiety. She retained good insight and had spontaneous speech, with sequential thoughts. She denied suicidal and homicidal ideations. In January and May 2019 VA treatment records, the Veteran reported hopelessness but denied suicidal thoughts. She lived with her sister and was very involved with church. In a February 2019 record, the Veteran had good insight, and denied suicidal and homicidal ideations. In a May 2019 VA examination report, the Veteran reported her relationship with her mother is good. Her relationships with her six siblings are not good, although her relationships with her son is better. She stated her friends at church are very helpful. She was staying with her pastor while she was moving to another state. She spends her time going to church, volunteering, and helping her mother. The Veteran denied working, and tried attending college, but was too anxious and left after attending one class. She takes medication. The Veteran reported the following symptoms: crying easily, daily panic attacks, feelings of guilt, psychomotor agitation and retardation, frequent fatigue, irritability, impaired concentration, excessive worry, and intense anxiety. The examiner noted the following symptoms: depressed mood; anxiety; panic attacks more than once per week; near-continuous panic or depression affecting the ability to functional independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work. The examiner also found speech was within normal limits, clear, coherent and goal-directed thought processes, and no evidence of delusions or hallucinations. The Veteran appeared mildly anxious and depressed. Her affect was constricted and appropriate and suicidal and homicidal ideations were convincingly denied, although she reported passive death wishes. There was adequate judgment and insight. In reviewing the evidence as a whole, the Board does not find that the Veteran meets the criteria for a 100 percent evaluation based on the schedular criteria. The Board does not discount the Veteran's real and true symptoms, which do cause some significant impact on her daily life. However, there is no indicate of "total" occupational and social impairment. In fact, she is able to engage in regular and normal communication. She has not engaged in grossly inappropriate behavior. While he has endorsed some suicidal ideation, there is no indication that she is a persistent danger to herself or others. She is always oriented. Any memory loss has not progressed to the point of not remembering her own name or those of family members. While she has shown some neglect of hygiene, basic personal hygiene is maintained and she completed activities of daily living. Indeed, she is engaged in family life and social endeavors such as church activities, and has undertaken such significant endeavors as to initiate adoption proceedings for his cousin's children, and repairing her own relationship with her adult son. She volunteers and helps her mother in and out of the house. Her insight and speech are good and she generally seems to function satisfactorily on a social level. In considering the Veteran's symptoms and disability picture as a whole, the Board does not find that "total" occupational and social impairment is present. While she does have deficiencies, the greater weight of the evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned by the Board in its prior decision. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that she does not meet the requirements for an evaluation greater than the now assigned 70 percent schedular rating during this period. To the extent that the Veteran has any of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 70 percent rating. As such, a rating in excess of 70 percent her anxiety disorder is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the final adjudication of this appeal, a remand is necessary to ensure proper development of the claim. 1 Entitlement to TDIU Per the JMPR, the Board erred in its prior decision when it failed to include consideration of TDIU as part and parcel of the increased rating claim for her anxiety disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is assigned when a veteran's service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there is more than one disability, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more 38 C.F.R. § 4.16 (a). In the instant matter, given the Board's denial of a rating in excess of 30 percent for PTSD, the Veteran's combined disability rating during the period on appeal is 40 percent. As such, the schedular criteria are not met for TDIU and a grant is generally precluded. Given that the Board has granted a 70 percent rating for her anxiety disorder from August 6, 2008, she meets the basic schedular criteria for such a rating for a significant period on appeal. The Board notes that there are portions of the appeal period where she is rated as 100 percent disabled, based on a combined rating. In that respect, for purposes of granting special monthly compensation based on housebound status, a TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Therefore, VA must consider if her anxiety disorder alone, or for the periods where she is not in receipt of a combined total rating, whether her combined disability picture rendered her unemployable. Because basic schedular entitlement is met, it is the question of "employability" that remains. The Veteran was initially denied TDIU in an October 2017 rating decision. That decision was predicated on the fact that the Veteran had failed to submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). While not mandatory for a grant of TDIU, that form generally informs VA of the periods where a Veteran is or was gainfully employed. To date, VA has not received that form from the Veteran. A review of the Veteran's VA treatment records and other evidence of record renders the status of the Veteran's employability unclear throughout the appeal period. Her VA examinations and treatment records indicate periods of employment with periods of difficulty maintaining employment. However, a resume submitted by the Veteran in November 2019 in support of a Vocation Rehabilitation and Employment claim indicates that the Veteran has been gainfully employed, full time, for the majority of the appeal period, at least through November 2019. Nonetheless, the Vocational Rehabilitation program has found in her favor, indicating a barrier to obtaining and maintaining employment. Because the question of when the Veteran was actually gainfully employed is unclear from the record, the Board will remand this claim so that the Veteran may supplement the record with her employment history. In remanding this appeal, the Veteran is notified that while VA has a statutory duty to assist in developing evidence pertinent to a claim, a Veteran also has a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA's duty must be understood as a duty to assist a Veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565 (2008). The matter is REMANDED for the following action: Invite the Veteran to submit any additional evidence in support of her appeal. Specifically, the Veteran should be requested to submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), or in the alternative, a record of her employment status from the date of her initial claim, August 6, 2008. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, 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.