Citation Nr: 21030329 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-45 291 DATE: May 18, 2021 ORDER Vacatur, in part, of the December 2020 Board decision denying entitlement to an increased rating for service-connected generalized anxiety with major depressive disorder (MDD) is granted. Entitlement to an increased rating of 50 percent, but no higher, for generalized anxiety with MDD prior to February 25, 2019 is granted. Entitlement to a rating greater than 70 percent for generalized anxiety with MDD from February 25, 2019 is denied. FINDINGS OF FACT 1. At the time of the Board's December 2020 decision, the perfected issue regarding the Veteran's claim for an increased rating for service-connected generalized anxiety with MDD included entitlement to a rating greater than 30 percent prior to February 25, 2019, as well as entitlement to a rating greater than 70 percent from February 25, 2019. 2. The Board's December 2020 determination did not include consideration of a rating greater than 30 percent prior to February 25, 2019, for the Veteran's service-connected generalized anxiety with MDD. 3. For the period prior to February 25, 2015, the Veteran's generalized anxiety with MDD symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, due to such symptoms such as chronic sleep impairment, anxiety, irritability, and disturbances of motivation and mood. 4. At no time from February 25, 2019, have symptoms of the Veteran's generalized anxiety with MDD approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for partial vacatur of the Board's December 2020 decision regarding the issue of entitlement to increased ratings for service-connected generalized anxiety with MDD have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. 2. For the period prior to February 25, 2019, the criteria for an increased initial rating, to 50 percent, but no higher, for service-connected generalized anxiety with MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Codes 9400, 9434. 3. For the period from February 25, 2019, the criteria for a rating greater than 70 percent for service-connected generalized anxiety with MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Codes 9400, 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to March 1967. This matter originates from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office that continued a 30 percent rating for the Veteran's service-connected generalized anxiety with MDD. This matter was previously before the Board in August 2019 at which time the issue on appeal was remanded for further evidentiary development; namely to obtain outstanding VA treatment records and to afford the Veteran additional VA examinations. There has been substantial compliance with the Board's August 2019 remand directives regarding the issue decided below. See Stegall v. West, 11Vet. App.268 (1998). In March 2020, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for generalized anxiety with MDD to 70 percent, effective February 25, 2019. I. Vacated Decision The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. In written correspondence in March 2021, the Veteran's representative pointed out that the Board's December 2020 decision did not include consideration of the perfected issue of entitlement to a rating greater than 30 percent for generalized anxiety with MDD prior to February 25, 2019. In consideration of this due process error, the Board, on its own motion, will vacate its December 2020 decision as it pertains to this increased rating issue. II. Increased Rating For Generalized Anxiety with MDD As noted, the Veteran's psychiatric disorder has been assigned a 30 percent rating for the period prior to February 25, 2019, and a 70 percent rating for the period from February 25, 2019. He seeks higher ratings for both periods. A. Pertinent Criteria Under the General Rating Formula for generalized anxiety and MDD, a 30 percent rating is warranted 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, suspiciousness, panic attacks (weekly or less often), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9400 (generalized anxiety disorder), Diagnostic Code 9434 (major depressive disorder). A 50 percent rating is assigned when there is 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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); and inability to establish and maintain effective relationships. Id. The maximum schedular rating of 100 percent is warranted 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. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment; but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). B. Analysis Rating Greater than 30 Percent Prior to February 25, 2019 By way of background, VA treatment records show that the Veteran began receiving psychotherapy treatment at a VA medical center (VAMC) in Brooksville, Florida, in August 2014, which was shortly after he relocated to the area. Prior to this time, he received psychiatric treatment at the VAMC in Michigan. A private psychiatric report in September 2014 contains the examiner's notation that the Veteran had chronic depression of gradual onset that began years earlier and which moderately limited his activities. The diagnosis shown on this report is mild depression for which medication (Effexor) was prescribed. VAMC records in 2014 and 2015 show regular psychiatric treatment for the Veterans anxiety and depression. More specifically, these records show that the Veteran experienced bouts of depression where he had low motivation and difficulty getting out of bed. They also show that he consistently denied suicidal thoughts. His activities included watching television and visiting a friend. In a statement dated in April 2015, the Veteran reported that his anxiety and depression had escalated over the past several years. The Veteran's former girlfriend submitted a statement in May 2015 reporting that she had dated the Veteran from January 2009 to July 2014 and that during that time he had bouts of depression and sleep disorders including nightmares and tremors. She said that his nightmares caused him to kick and punch her in his sleep which caused him severe stress out of fear that he would unintentionally hurt her. A VA psychiatric examination report in September 2015 reflects the Veteran's report that he was "doing well" and he did not have anger issues since restarting his anxiety medication. He reportedly lived alone, but he said that his girlfriend, who lives out of state, visits him occasionally. Mental status findings revealed that he was appropriately dressed and had good grooming and hygiene. He was interactive, pleasant, and cooperative and had good eye contact with no abnormal movements. He had an organized and logical thought process and his cognition was intact grossly. His mood/affect was mildly dysphoric. His activities included watching television and visiting a friend. In December 2018 and January 2019, the Agency of Original Jurisdiction (AOJ) received statements from the Veteran's spouse and daughter respectively, attesting to the Veteran's psychiatric symptoms that include frustration and anger, anxiety, depression, panic attacks, sleep problems and forgetfulness as to names of friends and relatives. They also reported that he has low motivation and mood swings and he doesn't like to be around people. After considering the pertinent evidence of record, the Board finds that the Veteran's service-connected generalized anxiety with MDD for the period prior to February 25, 2019 is somewhere between a 30 and 50 percent rating. In this regard, his demonstrated symptoms of routine behavior, self-care, and normal conversation, along with depressed mood, anxiety, suspiciousness, forgetting names and recent events and chronic sleep impairment are consistent with a 30 percent rating, whereas his symptoms of disturbances of motivation and mood and difficulty establishing and maintaining effective social relationships as evident by not wanting to be around people are consistent with a 50 percent rating. In terms of his reported panic attacks, it is unclear whether this symptom most approximate the criteria for a 30 or 50 percent rating since the frequency and severity of these attacks is not clear from the record. In any event, by resolving reasonable doubt in the Veteran's favor, the Board finds that he is entitled to a 50 percent rating, but no higher, for his generalized anxiety with MDD for the entire appeal period prior to February 25, 2019. 38 C.F.R. §§ 3.102; 4.7. The Veteran is not entitled to a higher rating of 70 percent by the very fact that his symptoms most approximate the criteria somewhere between a 30 and 50 percent rating. In this regard, he was not found to have suicidal or homicidal ideation and he had normal speech. Also, he was appropriately dressed at the September 2015 examination with good grooming and hygiene. Moreover, are no findings of impaired impulse control. In addition, his reports in treatment records in 2015 that he visits a friend and the statements from his spouse and daughter showing that he maintains relationships with them constitute evidence that he has some ability to establish and maintain effective relationships. Thus, as there is no evidence that the Veteran satisfies the criteria for a 70 percent rating or has symptoms of similar frequency and severity, the weight of evidence is against a higher than 50 percent rating for generalized anxiety with MDD for the period prior to February 25, 2019. Rating Greater than 70 Percent from February 25, 2019 A Disability Benefits Questionnaire (DBQ) from private psychologist Dr. Henderson-Galligan, in February 2019, shows that the Veteran had normal attention and that his concentration appeared variable. He complained of increased trouble with short-term memory. His speech flow was normal, although he was brief within information offered. His thought content was appropriate for the circumstances and organization of thought was goal directed. There was no report of overt hallucinations. His fund of knowledge and intellectual abilities appeared average. His ability to interpret proverbs was average and his judgment was average. His mood was anxious and nervous, and his affect restricted. He reported feeling anxious and depressed. He was noted on that day to endorse symptomology of depression and anxiety due to being suspicious and vague with response. He also seemed rather paranoid when speaking with the examiner. He was noted to be married with two adult children and he was socially isolated and withdrawn. A July 2019 VA psychiatric outpatient note reflects the Veteran's report that he was "not too bad this last time". He said that he was watching less television and reading more, and his activities included woodworking and painting his house. He reportedly lived alone and had a few friends. He also reported having a casual girlfriend who lived out of state and whom he had not seen since 2014. On examination he was appropriately dressed and had good grooming and hygiene. He was interactive, pleasant, and cooperative, and he had good eye contact and no abnormal movements. His speech was spontaneous, non-pressured and coherent, and his thought process was logical and organized. His mood/affect was euthymic, appropriate, stable, and non-dysphoric, and there were no violent/homicidal or suicidal thoughts. His cognition was grossly intact. A February 2020 VA psychiatric examination report notes that the Veteran was less irritable due to medication, and his mood was variable and not continuous. Also, his mood did not prevent him from functioning. The examiner reported that the Veteran cooked, bathed, shopped, did woodworking, and played games on the computer a good part of the day which he enjoyed. She also reported that he had remarried, maintained contact with his children, and had six close friends in his community. Medication was noted to help, but not cure, his chronic sleep impairment. Findings revealed that the Veteran's hygiene was good and there was nothing that precluded him from maintaining his hygiene. He was described as very pleasant, relaxed, and open. He reported that he was often bored, but he found things to do. He also reported continued depression with low energy and poor sleep (uses medication). He said that he stayed busy at home with woodworking and computer games and cooking. In terms of anger, it was noted that the Veteran did not describe significant explosions or manic related irritability. He did note that he gets frustrated in traffic and annoyed with others, but he denied acts of violence and history of fighting. On file is a private psychological assessment from Dr. Gray in June 2020 who reported that the Veteran presented as being mildly anxious. She also noted that he was cooperative and open, and his affect was congruent with topic. His speech was within normal limits. His thought process was over inclusive, but goal directed. He denied delusions and there was no evidence of a psychotic process. He denied perceptual disturbances. He reported a daily struggle with low mood, low self-esteem, worthlessness, anhedonia, and lacking energy and motivation. While there is no dispute from the evidence outlined above that symptoms of the Veteran's generalized anxiety with MDD cause social and occupational impairment, the evidence of record, lay and medical, does not reflect total occupational and social impairment. That is, the weight of evidence does not reflect total occupational and social impairment due to symptoms of such a frequency, degree, and severity as described for a 100 percent evaluation for PTSD or equivalent symptoms. As noted, the Veteran demonstrated normal speech and thought process and he maintains effective relationships with family and friends. In short, he is not shown to meet any of the criterion for a 100 percent rating or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In terms of the Veteran's subjective lay opinion that he is entitled to a 100 percent schedular rating for his generalized anxiety with MDD, the Board finds that the findings as outlined above when compared to VA's Schedule for Rating Mental Disorders more closely approximate the criteria for a 70 percent rating. (Continued on the next page) In sum, the Board finds that the weight of evidence does not establish total occupational and social impairment due to the Veteran's service-connected generalized anxiety with MDD at any point from February 25, 2019. Accordingly, the claim for a higher schedular rating of 100 percent must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.