Citation Nr: 21042816 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-43 056 DATE: July 13, 2021 ORDER Entitlement to a rating of 50 percent for generalized anxiety disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's generalized anxiety disorder is manifested in lack of motivation, angry outbursts, and anxiety attacks. CONCLUSION OF LAW The criteria for a rating of 50 percentbut no higherfor generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1959 to December 1968. For his meritorious service, he was awarded (among other decorations) the Combat Action Ribbon, the Vietnam Service Medal, and the Vietnam Campaign Medal. The Veteran testified regarding his claims for a rating in excess of 30 percent for generalized anxiety disorder and TDIU at Board hearings in June 2019 and January 2021 before two different Veterans Law Judges (VLJ). VA law requires that a VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. During the January 2021 hearing, he waived his right to a hearing before a third VLJ. 38 U.S.C. § 7102(a); 38 C.F.R. § 19.3; Arneson v. Shinseki, 24 Vet. App. 379 (2011). 1. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder The Veteran asserts that he is entitled to an increased evaluation for his generalized anxiety disorder. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14. The Veteran's general anxiety disorder is evaluated under VA's General Rating Formula for Mental Disorders. Under the formula, 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9400. A 50 percent rating is warranted 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 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9400. A 70 percent rating is warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9412. Ratings are assigned according to the manifestation of symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length 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 the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability during 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 based on social impairment. 38 C.F.R. § 4.126(b). The Veteran asserts that his generalized anxiety disorder is more disabling that reflected by his current 30 percent rating. The Board finds that the Veteran's disability more nearly approximates the criteria for a 50 percent rating. During an August 2015 VA psychological evaluation, the examiner noted that the Veteran's symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the inability to perform occupational tasks only during periods of significant stress. The symptoms included depressed mood, anxiety, and chronic sleep impairment. His speech was normal. He showed good interpersonal skills and seemed to be of high intellectual ability in spite of some difficulty with concentration and memory screenings. He denied delusional thinking or hallucinations. He reported some flashbacks and exaggerated startle response as a result of military service, but it did not interfere with social or occupational functioning. A December 2015 private treatment record indicates the Veteran denied psychiatric symptoms. In an April 2016 questionnaire, the Veteran reported that nearly every day he is easily annoyed or irritable and feels afraid that something awful might happen. He reported that often he worries, has trouble relaxing, and feels like he cannot sit still. His symptoms have made it difficult to work, take care of things at home, and get along with people. His depression assessment showed mild depression symptoms. Based on the April 2016 questionnaire, the Veteran's primary care physician Dr. V.B completed a mental health questionnaire. Dr. V.B. indicates that the Veteran's generalized anxiety and mild depression resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran's symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short- and long-term memory, impaired abstract thinking, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and inability to maintain effective relationships. A May 2017 VA treatment record indicates the Veteran denied feelings of anxiety or depression. He also denied suicidal or homicidal ideation. A December 2017 VA psychological evaluation noted a diagnosis of unspecified depression. The examiner noted that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. His mental health symptoms included depressed mood, anxiety, suspiciousness, and panic attacks that occur weekly or less often. During the examination, the Veteran showed appropriate appearance and hygiene. He was oriented to time, place, and purpose. He was extremely anxious and nervous. He showed some signs of depression. He denied hallucinations or delusions. He denied suicidal or homicidal ideation. He showed good insight and judgment. He reported getting adequate sleep typically from 10 pm to 6 am. The Veteran was afforded an additional VA psychological evaluation in December 2017 and was not found to meet the criteria for any psychiatric disorder. The examiner noted that the Veteran reported an unremarkable mental health history. The Veteran reported that he had good relationships with all his children and maintained contact with extended family. He reported having several friends and acquaintances and stated that someone stops by his home at least once per day. He reported he enjoyed playing golf, attending the theater, and going out to dinner. Regarding the earlier December 2017 examination, the examiner noted there was no objective or subjective evidence to support a diagnosis of unspecified depressive disorder or how it negatively affected occupational or social functioning. The examiner also noted that the Veteran was not engaged in therapy, has not been prescribed psychotropic medication, and has not been hospitalized for psychiatric issues. He denied history of suicidal or homicidal ideation or intent. A May 2018 VA treatment note indicates the Veteran reported feeling grief and anxiety after losing his dog. He reported feeling depressed for a few days. He reported the incident triggered memories from service. He denied any acute distress or any history of homicidal ideation. He reported some intermittent suicidal ideation but indicated he uses his children as coping strategies but had no plan. He declined any further mental health and reported he has several friends he plays golf with and a large supportive family. He reported he feels he has enough support in place. During the June 2019 Board hearing, the Veteran reported feeling worthless and short tempered. He reported having no desire to anything. He reported suicidal thoughts occur often. He also reported forgetfulness and that he occasionally hears voices. In a June 2019 lay statement from the Veteran's associate, C.E.W., states that the Veteran is often drowsy and forgets things quickly. An August 2019 private psychological evaluation indicates the Veteran's mental health condition results in deficiencies in mood, difficulty adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, inability to establish and maintain effective relationships, and chronic sleep impairment. There was no evidence of delusions, hallucinations, gross impairment in thought processes or communication, panic or depression affecting the ability to function independently, appropriately, or effectively, or speech intermittently illogical, obscure, or irrelevant. The Veteran presented with complaints of general anxiety and tension, depressed mood, unstable mood swings. A December 2019 VA psychological evaluation conducted after the Board remand indicates the Veteran's mental health symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran reported that he enjoys intellectual pursuits such as watching news programs with varied points of view the being able to best others in conversation about them. He reported he enjoyed playing golf with peers but cannot due to knee pain. The examiner noted that his anxiety did not preclude the Veteran from interacting with others or participating in leisure or daily activities. The Veteran denied suicidal ideation. He reported that he was trained in suicide if captured during the Vietnam war but had not considered it since that time. He described a possible hallucinatory experience, which the examiner noted was not consistent with psychosis and did not appear to cause anxiety in the Veteran. The Veteran reported significant sleep difficulty due to anxious thoughts about his increasing loss of physical abilities. Overall, the Veteran's mental health condition manifested in depressed mood, anxiety, and chronic sleep impairment. A May 2020 private treatment note indicates the Veteran reported he had recently moved into an apartment and when he has visitors, he feels much better but experiences worsening mental health symptoms when he is home alone. He reported intrusive thoughts about service and occasional nightmares. He reported occasional angry outbursts without provocation. He reported hypervigilance. His symptoms also included depressed mood, fatigue, and severe somatic anxiety. During the January 2021 Board hearing, the Veteran reported sleep difficulty and suicidal thoughts that occur two to three times per month. He described depression, ruminating thoughts, and lack of motivation. He will sometimes stay home for 3 or 4 days at a time. He reported going several days without bathing, having angry outbursts, trouble maintaining concentration, and memory difficulties. He reported experiencing anxiety attacks up to four times per month. A January 2021 VA treatment note indicates the Veteran's daughter indicated that he was confused, hallucinating, and making angry outbursts intermittently. In a February 2021 private psychological evaluation, R.A.S. indicated that the Veteran's mental health condition manifested in anxiety, insomnia, depression, panic, avoidance, nightmares, and psychomotor agitation. R.A.S. noted that the Veteran was casually dressed and groomed. He opined that since May 26, 2015, the Veteran has experienced significant occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and mood. R.A.S. further stated that the Veteran's symptoms were markedly heightened by an increasingly diminished frustration tolerance, psychomotor agitation, and retardation, decreased energy, change in personality, mood disturbance and feelings of guilt and worthlessness while exercising poor judgment. While there is some evidence of milder symptomatology earlier in the appeal period, the Board finds that the evidence taken as a whole shows that a 50 percent rating is warranted throughout the appeal period. The Veteran has reported worsening anxiety symptoms during his Board hearings. The Veteran reported lack of motivation, angry outbursts, and anxiety attacks. The May 2020 private treatment note, January 2021 VA treatment note, and February 2021 private psychological evaluation also indicate that the Veteran began experiencing worsening symptoms including angry outbursts, impaired judgment and disturbances of motivation and mood. The Board acknowledges that suicidal ideation is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran reported in May 2018 that he had "some" suicidal ideation and at the June 2019 hearing said he thought of suicide "often." However, the record also includes numerous treatment records and examinations throughout the appeal period where the Veteran denied active suicidal ideation. Furthermore, at the December 2019 VA examination he said he was trained in suicide if captured during the Vietnam war but had not considered it since that time. The Board finds that the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by 70 percent or 100 percent disability ratings, and do not indicate a severity of the Veteran's disability in excess of that contemplated by a 50 percent rating. The evidence does not show obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, impaired muscle control, or spatial disorientation. Although the Veteran reported that he would sometimes go several days without showering during the January 2021 Board hearing, the preponderance of the evidence including the February 2021 VA private examination does not show neglect of personal appearance and hygiene. The record also shows isolated reports of hallucination but is silent for the vast majority of the criteria for a 70 percent rating, and his occupational and social impairment does not rise to the level associated with a 70 percent rating. Thus, a rating in excess of 50 percent is not warranted. The Board notes Dr. R.A.S.'s February 2021 opinion that the Veteran has experienced significant impairment due to his mental health symptoms since May 2015. However, the document makes clear that the Veteran was not seen or evaluated in person for this report. While medical treatment conducted through technology are certainly useful for many purposes, the Board finds that the report of an examiner that met with the Veteran in person is afforded more weight than one conducted in this manner. As such, the Board cannot rely on this evidence of lesser weight in order to award a higher rating of 70 or 100 percent. In sum, entitlement to a rating of 50 percent is granted. [CONTINUED ON THE NEXT PAGE] REASONS FOR REMAND The Veteran has a pending claim of entitlement to service connection for a prostate condition. As the outcome of that may be relevant to the Veteran's employability, a decision on TDIU must be deferred until that matter is resolved. The matters are REMANDED for the following action: The decision on TDIU is stayed pending the outcome of his claim for service connection for a prostate condition. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Williams, 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.