Citation Nr: 21041577 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 133 DATE: July 9, 2021 ORDER An initial disability rating in excess of 30 percent prior to December 29, 2020 for an acquired psychiatric disability, characterized as anxiety disorder, not otherwise specified, is denied. A disability rating in excess of 50 percent from December 29, 2020, for an acquired psychiatric disability, characterized as anxiety disorder, not otherwise specified, is denied. FINDINGS OF FACT 1. Prior to December 29, 2020, the Veteran's anxiety disorder was manifested by no more than 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); there was no showing of occupational and social impairment with reduced reliability and productivity. 2. Since December 29, 2020, the Veteran's acquired psychiatric disability has been manifested by occupational and social impairment with reduced reliability and productivity; there is no showing of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent prior to December 29, 2020, and in excess of 50 percent thereafter, for an acquired psychiatric disability, characterized as anxiety disorder, not otherwise specified, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2005 to October 2013. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is proper to consider factors outside the specific rating criteria when appropriate to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial disability rating in excess of 30 percent prior to December 29, 2020, and in excess of 50 percent thereafter, for an acquired psychiatric disability, characterized as anxiety disorder, not otherwise specified The Veteran contends that increased initial staged disability ratings are warranted for his anxiety disorder. Specifically, he contends that the staged disability ratings assigned to his anxiety disorder should be increased because does not feel emotions like other people, he dislikes talking to people, he has difficulty in understanding complex commands at work, he experiences problems with his short- and long-term memory, he experiences a lack of motivation, he has difficulty developing work and social relationships, he experiences anxiety performing simple tasks, such as traveling to the store, he experiences difficulty sleeping, and that he avoids social relationships and has no friends, declining to meet up with his close friends. Additionally, he contends that increased staged disability ratings are warranted because his anxiety disorder caused him to quit his first job after his separation from service as a police officer. He asserts that he quit his job as a police officer because his anxiety disorder made him unmotivated to learn, apathetic, to experience a strong dislike of interacting with the public, and to experience panic attacks before his shifts at least twice per week. Prior to December 29, 2020 Prior to December 29, 2020, the Veteran's anxiety disorder has been assigned an initial 30 percent disability rating under 38 C.F.R. § 4.130, DC 9413. In order to warrant a 50 percent disability rating, the evidence must demonstrate occupational and social impairment with reduced reliability and productivity, resulting in a difficulty establishing and maintaining effective work and social relationships, characterized by symptoms such as, but not limited to, 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, and disturbances of motivation and mood. 38 C.F.R. § 4.130, DC 9413. After a review of the evidence of record, the Board determines that an initial disability rating in excess of 30 percent prior to December 29, 2020 for the Veteran's anxiety disorder is not warranted because the evidence does not show that his anxiety disorder caused occupational and social impairment with reduced reliability and productivity prior to December 29, 2020. Initially, the report from the June 2014 VA examination fails to show that a disability rating in excess of 30 percent is warranted prior to December 29, 2020 because it does not show that the Veteran's anxiety disorder was manifested by occupational and social impairment with reduced reliability and productivity. The examination report reflects that the Veteran reported that he had ongoing difficulties with anxiety and occasional episodes of agitation involving yelling at others, irritability, excessive worries, and poor sleep. Despite the Veteran's reported symptoms, the examination report indicates that the examiner determined that the Veteran's anxiety disorder manifested itself only through symptoms of anxiety and chronic sleep impairment, and that he presented as alert and well oriented, that he was casually dressed, that he had good hygiene and grooming, and that he exhibited coherent and goal-directed speech, with no evidence of psychosis or other thought disorder. The examination report further reflects that he denied nightmares or intrusive thoughts pertaining to traumatic experiences, that he denied self-injurious ideation, plan, or intent, and that he did not present as a danger to himself or others. Based upon the symptoms observed during the in-person interview, and a review of the claims file, the examiner opined that the Veteran's anxiety disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during significant stress, or, symptoms controlled by medication. The Board concludes that the June 2014 VA examination report is entitled to significant probative weight given the examiner's in-person examination, review of the claims file, and expertise, and confirms that an initial disability rating in excess of 30 percent prior to December 29, 2020 is not warranted for the Veteran's anxiety disorder. Specifically, the examination report shows that his anxiety disorder has not been manifested by symptoms causing occupational and social impairment with reduced reliability and productivity because it does not show that he experiences any symptoms consistent with that level of occupational and social impairment. Indeed, the examination report did not show any evidence of a flattened affect, showed that he had coherent and goal-directed speech rather than circumstantial, circumlocutory, or stereotyped speech, and did not show that he experienced panic attacks, impairment or short- and long-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships. In light of this clinical evaluation, the Board finds that the Veteran does not exhibit objective symptomatology sufficient to warrant an initial disability rating in excess of 30 percent prior to December 29, 2020. Nevertheless, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board finds that the Veteran's symptoms are insufficient to warrant an increased initial disability rating given that his treatment records also fail to show that his anxiety disorder has manifested itself through symptoms fitting the criteria for an increased rating. Indeed, his treatment records do not show that his anxiety disorder caused occupational and social impairment with reduced reliability and productivity. Indeed, rather than a flattened affect, they showed a euthymic affect. Rather than circumstantial, circumlocutory, or stereotyped speech, they showed speech that was normal. Similarly, rather than impairment of short- and long-term memory, impaired judgment, and impaired abstract thinking, his treatment records showed good judgment, logical and goal-oriented thought processes, and an adequate memory. Additionally, rather than disturbances of motivation and mood, his treatment records showed that he had a positive outlook to the future. For example, an April 2014 treatment record reflects that a mental status examination was performed and that the treating physician observed that the Veteran was dressed appropriately and well groomed, exhibited speech that was clear and appropriate to content, exhibited clear and concise thoughts, did not have delusions or hallucinations, was oriented to person, place, time, and situation, did not have suicidal or homicidal ideations, and exhibited a depressed and anxious mood and an affect that was consistent with his mood. A May 2017 treatment record also reflects that a mental status examination was performed and that the treating physician observed that the Veteran was well-groomed and dressed casually, was alert and oriented to time, person, and place, exhibited clear and relevant speech that was normal in tone, rate, and volume, exhibited appropriate eye contact, was polite and cooperative, exhibited a fairly euthymic and congruent mood, had logical and goal oriented thought processes, had no active suicidal ideations, homicidal ideations, hallucinations, delusions, obsessions, or paranoia, exhibited good judgment, good insight, an adequate memory and a positive outlook to the future. Although an April 2014 treatment record reflects that he reported a depressed mood, and an April 2017 treatment record reflects that he described his mood as anxious show a depressed mood and an April 2017 treatment record reflects that he was concerned with his anxiety and reported experiencing daily irritability, that he lost his temper on occasion, and had nightmares once per month, these symptoms alone are not sufficient to establish that he is entitled to an initial disability rating in excess of 30 percent prior to December 29, 2020 because, for the reasons set forth above, a holistic analysis does not show that his anxiety disorder has been manifested by symptoms representative of occupational and social impairment with reduced reliability and productivity. Indeed, his reported irritability, temper issues, and nightmares are more consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, particularly given that the evidence fails to show that they were frequent, severe, or for significant durations. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms and should include consideration of any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan, 16 Vet. App. at 444. Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment with reduced reliability and productivity. In this regard, the evidence does not indicate that an initial disability rating in excess of 30 percent is warranted prior to December 29, 2020. Here, the evidence, including the report from the June 2014 VA examination, shows that prior to December 29, 2020 the Veteran was stably housed and was married. An April 2017 treatment record similarly shows that he had been married for more than six years, lived with his wife, that they got along "for the most part," that he was taking online courses, had no legal issues, and finances that were "fine." Therefore, the Veteran did not display occupational and social impairment with reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). By virtue of the foregoing, the Board concludes that an initial disability rating in excess of 30 percent for the Veteran's anxiety disorder is not warranted prior to December 29, 2020. From December 29, 2020 Since December 29, 2020, the Veteran's anxiety disorder has been assigned a 50 percent disability rating under 38 C.F.R. § 4.130, DC 9413. In order to warrant a 70 percent disability rating, the evidence must demonstrate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, resulting in an inability to establish and maintain effective relationships, characterized by symptoms including, but not limited to, suicidal ideation, obsessional rituals that 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, and difficulty in adapting to stressful circumstances (including work or a worklike setting). 38 C.F.R. § 4.130, DC 9413. After a review of the evidence of record, the Board determines that a disability rating in excess of 50 percent from December 29, 2020 for the Veteran's anxiety disorder is not warranted because the evidence does not show that his anxiety disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood since December 29, 2020. Initially, the report from the December 2020 VA examination fails to show that a disability rating in excess of 50 percent is warranted from December 29, 2020 because it does not show that the Veteran's anxiety disorder was manifested by occupational and social impairment with deficiencies in most areas. The examination report reflects that the Veteran reported that he found it difficult to make friends, did not like people, became easily aggravated with people, and was generally stressed and anxious all of the time. The examination report indicates that the examiner determined that the Veteran's anxiety disorder manifested itself only through symptoms of anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and obsessional rituals that interfere with routine activities. The examination report also indicates that the Veteran was casually dressed for the examination, demonstrated adequate grooming and good hygiene, was alert and demonstrated a cooperative attitude, exhibited speech that was at a normal rate, tone, and volume, exhibited a goal-directed and logical though process, responded appropriately to questions, denied present suicidal ideation, indicated that he had no thoughts of harming others, did not demonstrate evidence of hallucinations, delusions, or intoxication, was oriented to person, place, and time, and demonstrated that his memory was intact. The examination report also indicates that he reported passed suicidal ideation, but denied any intention of acting on those passive thoughts. Based upon the symptoms observed during the in-person interview, and a review of the claims file, the examiner opined that the Veteran's anxiety disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during significant stress, or, symptoms controlled by medication. The Board concludes that the December 2020 VA examination report is entitled to significant probative weight given the examiner's in-person examination, review of the claims file, and expertise, and confirms that a disability rating in excess of 50 percent from December 29, 2020 is not warranted for the Veteran's anxiety disorder. Specifically, the examination report shows that his anxiety disorder has not been manifested by symptoms causing occupational and social impairment with deficiencies in most areas. Indeed, the examination report showed that he had speech at a normal rate, tone, and volume rather than speech that was intermittently illogical, obscure, or irrelevant, showed that he was oriented to person time or place rather than that he exhibited spatial disorientation, and showed that he demonstrated adequate grooming and hygiene rather than a neglect of personal appearance and hygiene. Moreover, the examiner did not indicate that the Veteran's anxiety disorder caused impaired impulse control, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. To the extent that the examination report reflects that the Veteran reported past suicidal ideation, the Board notes that he denied present suicidal ideation and that he denied any intention to act upon his passive thoughts. Further, the treatment records do not memorialize any additional instances of suicidal ideation. Thus, the reported past suicidal ideation was not frequent or for a significant duration and does not that an increased disability rating is warranted. With respect to obsessional rituals that interfere with routine activities, no other treatment records reflect that he participated in such rituals, again showing that such rituals are not of a sufficient frequency, severity, and duration to warrant an increased disability rating for his anxiety disorder from December 29, 2020. In light of this clinical evaluation, the Board finds that the Veteran does not exhibit objective symptomatology sufficient to warrant a disability rating in excess of 50 percent from December 29, 2020. Nevertheless, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board finds that the Veteran's symptoms are insufficient to warrant an increased initial disability rating given that his treatment records also fail to show that his anxiety disorder has manifested itself through symptoms fitting the criteria for an increased rating. Indeed, his treatment records do not show that his anxiety disorder caused occupational and social impairment with deficiencies in most areas. Indeed, none of his treatment records reflect that he reported symptoms consistent with occupational and social impairment with deficiencies in most areas or that a treating physician observed such symptoms, including, without limitation, suicidal ideation, obsessional rituals that 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, and difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms and should include consideration of any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan, 16 Vet. App. at 444. Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment with reduced reliability and productivity. In this regard, the evidence does not indicate that an initial disability rating in excess of 50 percent is warranted from December 29, 2020. Here, the evidence, including the report from the December 2020 VA examination, shows that the Veteran lived with his wife of 10 years and two children, that thing were going satisfactorily with his marriage, that he enjoyed cooking and eating good food, devoted his time to his children and doing family activities when he was home, and that he worked as a military contractor. Therefore, the Veteran did not display occupational and social impairment with reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). By virtue of the foregoing, the Board concludes that a disability rating in excess of 50 percent for the Veteran's anxiety disorder is not warranted from December 29, 2020. In considering the appropriate staged disability ratings for the Veteran's anxiety disorder, the Board has also considered the statements from the Veteran that his anxiety disorder is worse than the staged ratings that he currently receives. Specifically, the Board has considered his statements that he lacks emotion, dislikes people, has difficulty in understanding complex commands, experiences issues with his short- and long-term memory, experiences a lack of motivation, feels anxiety when performing simple tasks, has difficulty developing work and social relationships, caused him to quit a prior job, and caused him to experience panic attacks during a prior job. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his anxiety disorder according to the appropriate DC. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's anxiety disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the June 2014 and December 2020 VA examiners, and the physicians who have evaluated his mental status, directly address the criteria under which his anxiety disorder is evaluated. Specifically, although the he has asserted that the symptoms of his anxiety disorder warrant a higher disability rating, the impact of the symptoms of his anxiety disorder was discussed and addressed by the by the June 2014 and December 2020 VA examiners and physicians who have evaluated his mental status, and the Board finds their assessments of greater probative weight. By virtue of the foregoing, the Board concludes that an initial disability rating in excess of 30 percent prior to December 29, 2020 and in excess of 50 percent thereafter is not warranted for the Veteran's anxiety disorder. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel