Citation Nr: 21040010 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-18 381 DATE: July 2, 2021 ORDER Entitlement to a rating in excess of 70 percent for panic disorder with anxiety disorder is denied. FINDING OF FACT Throughout the period on appeal, the severity, frequency, and duration of the Veteran's panic disorder with anxiety disorder symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for panic disorder with anxiety disorder symptoms have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9400-9412. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to April 1974. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal was most recently before the Board in June 2018 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 70 percent for panic disorder with anxiety disorder The Veteran seeks a higher rating for his service-connected panic disorder with anxiety disorder, which is rated as 30 percent disabling from May 9, 2002 and as 70 percent disabling from August 17, 2011 under 38 C.F.R. § 4.130, Code 9400-9412. He filed is claim for a higher rating in August 2011. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent after March 1, 2011. The Board concludes that the Veteran's symptoms do not cause the level of impairment required for a disability rating of 100 percent after March 1, 2011. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. On May 2012 VA examination, the Veteran reported that he could not tolerate any small amount of stress at all and he had an increase in panic attacks. He reported that his wife and daughter had moved out in December 2011. He also reported that he had a girlfriend. He described that he met his girlfriend about a year and a half before hand and when he met her he started taking a shower everyday and getting out of the house. The examiner identified symptoms of anxiety; panic attacks more than once a week; mild memory loss, such as forgetting names, directs, or recent events; speech intermittently illogical, obscure, or irrelevant; impaired judgement; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. In a July 2012 rating decision, the rating of the Veteran's panic disorder with anxiety disorder was increased to 70 percent, effective August 17, 2011, his date of claim for a higher rating. In an August 2012 VA psychiatric treatment note, the Veteran reported that he continued to have frequent panic attacks. On mental status examination, he appeared normal, appropriately groomed, and with fair personal hygiene. He had normal activity with no psychomotor agitation or retardation. His attitude was pleasant, polite, and cooperative. His speech was fluent, coherent, with no pressure or latency. His mood was anxious. Affect was euthymic, appropriate, mood congruent. He denied any hallucinations. Thought flow was spontaneous, linear, logical, and goal directed. At the October 2015 hearing, the Veteran testified that his symptoms had worsened since his last VA examination in May 2012. He testified he was receiving VA treatment, about once every three months. He testified at for about 5 years prior to 2011 he stayed in his room. He also testified he would regularly get three or four panic attacks a week. He testified he was estranged from his wife and daughter, and had few friends. On October 2019 VA examination, the Veteran reported he lived with his wife of 34 years and one of his step-daughters. He denied having close friends. He also reported he was is wife's caregiver during her chemotherapy, so he did not have time for leisure activities. The examiner identified symptoms of anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in understanding complex commands; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. On mental status examination, the Veteran's grooming and hygiene were fair. His eye contact was fair. He was oriented to person, place, date, and situation. His psychomotor activity was within normal limits. His speech was of regular rate and rhythm. His mood was claim, and affect was congruent and appropriate. His thought process was coherent, logical, linear, and goal oriented. His attention and memory were within normal limits. Insight, judgement, and impulsive control were fair. He denied any current suicidal and homicidal ideation, plan, and intent. The examiner noted it was difficult to determine the severity of the Veteran's symptoms based on his self-reports as there was inconsistencies in his reporting compared to his medical records. The examiner indicated that could be due to various reasons including cognitive impairment she observed during the interview or withdrawal from substance abuse. However, she noted that based on his psycho, social, and occupational impairment documented in his medical records, the severity of his reported symptoms seemed to be similar to his May 2012 VA examination. On September 2020 VA examination, panic disorder without agoraphobia and generalized anxiety disorder were diagnosed. The examiner noted it was not possible to differentiate the symptoms attributable to his panic disorder and generalized anxiety disorder. The Veteran reported he lived with his second wife of 36 years, his daughter who has MS and is legally blind, and two caregivers for them. The examiner identified symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. On behavioral observations, he was on time to the examination and appeared casually dressed. He was cooperative, engaged, and talkative. He used dry humor and laughed periodically and then irritable when discussing how he feels medical professionals have disappointed him. Affect was varied between appropriated to irritable. Thought process was lucid and logical. He denied suicidal or homicidal ideation. He was alert and oriented, and memory for past events was intact. Based on a review of the record, the Board concludes that a higher 100 percent rating for the Veteran's panic disorder with anxiety disorder is not warranted because the effect of the symptoms of his panic disorder with anxiety disorder do not more closely approximate the disability picture contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Code 9400-912. The evidence does not reflect that the Veteran's psychiatric symptoms resulted in total occupational and social impairment. The evidence does not show that he exhibited gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); memory loss for names of close relatives, own occupation or own name due to his panic disorder with anxiety disorder. While his thought process and content, communication skills, and memory were impaired during the period on appeal, the record reflects that they were not grossly impaired. VA examiners in May 2012, October 2019, and September 2020 noted memory loss, but the memory loss was only mild and did not find that it included a loss of the names of close relatives, own occupation, or his own name. Additionally, throughout the period on appeal the Veteran's thought process was consistently noted to be relevant, rational, and goal directed. No auditory or visual hallucinations were noted at any point. His behavior and communication were also consistently found to be appropriate thought the period on appeal. The competent evidence of record does not show the Veteran is precluded from functioning both mentally and behaviorally on a daily basis, such that the symptoms cause total occupational and social impairment. Gross impairment of cognitive functions is not shown. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's panic disorder with anxiety disorder symptoms resulted in the level of impairment required for a 100 percent rating under Code 9400-9412. The criteria for a 100 percent rating are not met and the appeal must be denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.