Citation Nr: 21041245 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-39 249 DATE: July 8, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for anxiety disorder with insomnia prior to March 16, 2016 is granted. FINDING OF FACT Throughout the entirety of the period at issue, the Veteran's anxiety disorder with insomnia was productive of symptoms consistent with a 70 percent evaluation. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 70 percent for anxiety disorder with insomnia prior to March 16, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to January 2012. In a June 2019 decision, the Board of Veterans' Appeals (Board) granted a 50 percent rating, but no higher, prior to March 16, 2016 for the Veteran's service-connected psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and, in a December 2020 Memorandum Decision, the Court vacated Board's decision regarding the rating prior to March 16, 2016 and remanded the matter to the Board for compliance with the terms of the decision. In the Memorandum Decision, the Court found that the Board failed to provide adequate reasons and bases as to why a rating in excess of 50 percent was not warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. The General Rating Formula for Mental Disorders provides a 50 percent rating for 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- 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. 38 C.F.R. § 4.130, Diagnostic Code 9413. The criteria for a 70 percent rating are 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 criteria for a 100 percent rating are 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. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. In November 2011 service treatment records (STRs), the Veteran reported symptoms of trouble falling sleep, feeling irritable or having angry outburst, and difficulty concentrating. The Veteran was afforded a VA examination in December 2011. The Veteran reported the inability to fall asleep, as she would lay awake for approximately two hours and wake up every two to three hours once she did fall asleep. She would feel tired and groggy most of the day due to poor sleep. Her symptoms affected daily functioning because she felt tied most of the day and irritable. She had no history of violent behavior or suicide attempts. She had not been hospitalized or visited the emergency room for any psychiatric reasons. There were no major social functioning changes since she developed the psychiatric disorder. The Veteran reported that she had a good relationship with her supervisor and tense relationships with her co-workers due to how she does her job. The Veteran reported symptoms of tearfulness, weight loss, and passive thoughts of death; however, these symptoms had not been experienced since 2010, which was prior to the date entitlement arose. Orientation, appearance, hygiene, behavior, eye contact, affect, mood, communication, speech, concentration, panic attacks, suspiciousness, delusions, hallucinations, thought processes, judgment, abstract thinking, memory, suicidal ideations, and homicidal ideations were all found to be within normal limits. The examiner noted the Veteran was able to establish and maintain effective work and social relationships. The Veteran's disorder manifested in occupational and social impairment with decrease in work efficiency and occupational tasks. The Veteran was provided with a VA examination in November 2012. The Veteran was diagnosed with anxiety disorder and insomnia. The insomnia resulted in impaired sleep which affected productivity and efficiency at work. The anxiety resulted in difficulty with large groups; becoming anxious when she has to deal with change, strangers, crowds, and traffic; increased heart rate; the inability to think straight; excessive worrying; and triple checking everything. The psychiatric disability manifested in occupational and social impairment with occupational decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted symptoms of suspiciousness, chronic sleep impairment, and mild memory loss. In February 2014 VA treatment notes, the Veteran reported isolating herself for one to two months at time from her family. The Veteran provided lay evidence in the May 2014 notice of disagreement. The Veteran reported that personal relationships were difficult with the constant paranoia and anxiousness. She was unable to remember past occurrences and conversations, how to complete certain tasks, and short-term items due to memory impairments. In July 2014 VA treatment notes, the Veteran reported isolating herself in social situations. In November 2014 Correspondence, the Veteran that her sleep impairment prevented her from getting a deep sleep. Her medication heightened her inability to relate to other people, complete tasks, receive or follow through with instructions, or have simple conversations. She believed she would be unable to function at work or school if she continued on Fluoxetine. She averaged 3 hours of sleep on a good night. She believed her lack of sleep enhanced her paranoia, made it difficult to concentrate on tasks that are not familiar, and rendered her incapable of abstract thinking. She was also cranky, irritable, and unsociable. She had no friends outside of her family. Her short- and long-term memory was impaired. She was barely able to relate to her family and closed herself off by avoiding social settings and family. She must carpool due to her lack of sleep. She was unable to relay any kind of thoughts which makes communication a barrier and to deal with small and normally irrelevant levels of change because of anxiety and increased stress. In determining the appropriate rating, the Board has considered the severity, frequency, and duration of the signs and symptoms of the Veteran's anxiety disorder and insomnia as required under Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The pronounced nature of her symptoms, especially as described in her lay statements, indicates a degree of impairment that is consistent with occupational and social impairment, with deficiencies in most areas, as well as difficulty in adapting to stressful circumstances. A 70 percent evaluation is thus warranted. In the absence of specific lay contentions or medical evidence, however, there is no finding of total occupational and social impairment. There is no other evidence supporting the symptoms for a 100 percent evaluation. A 70 percent evaluation, but not more, is thus warranted for anxiety disorder prior to March 16, 2016. To this extent, the appeal is granted. This appeal raises no other issues. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. N. Quarles, 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.