Citation Nr: 22010076 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 16-59 306 DATE: February 22, 2022 ORDER Entitlement to a 70 percent evaluation, but no higher, for an unspecified anxiety disorder with depression is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The Veteran's unspecified anxiety disorder with depression is productive of occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a 70 percent evaluation, but no higher, for unspecified anxiety disorder with depression have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.130, Diagnostic Code 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty for training from July 1970 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript is of record. The Board remanded the case for further development in November 2019. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, a uniform evaluation for the appeal period is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In this case, the Veteran is currently assigned a 30 percent evaluation for his service-connected unspecified anxiety disorder with depression, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9400. A 30 percent rating is warranted where 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; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where there is 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. Id. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Id. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to 70 percent evaluation for his service-connected unspecified anxiety disorder with depression. The evidence demonstrates that the Veteran's overall disability picture more nearly approximates social and occupational impairment with deficiencies in most areas throughout the appeal period. Although the Veteran has denied having suicidal ideations on multiple occasions, treatment records also show that he has had them at other times throughout the appeal period. For example, a June 2015 VA treatment record documented that he had been hospitalized for one night due to suicidal thoughts, and a February 2016 VA treatment record noted his report of fleeting suicidal thoughts with no specific plan. A June 2016 VA treatment record also indicates that the Veteran was still dealing with some degree of suicidal ideations every day. Although he denied having an active suicidal plan in July 2018, it was noted that he has ideation and parasuicidal thoughts at times. A July 2020 VA treatment record further indicated that the Veteran reported having suicidal thoughts sometimes with no intent to act on them, and October 2020 and November 2020 VA treatment records documented suicidal ideation. In addition, the November 2020 VA examiner reported that the Veteran had occasional, relatively brief suicidal ideation with no history of suicide attempts, plans, or intentions to attempt suicide. As set forth above, suicidal ideation is one of the symptoms associated with a 70 percent disability rating. Suicidal ideation involves a range from a passive wish not to awaken in the morning or a belief that others would be better off if the individual were dead, to transient but recurrent thoughts of committing suicide, to a specific plan. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Court has held that the criteria for a 70 percent rating "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. Moreover, the Veteran told the June 2016 VA examiner that he was experiencing social withdrawal and was feeling hopeless, and a November 2018 VA treatment record similarly noted that he was withdrawn. In addition, the November 2020 VA examiner indicated that the Veteran had reported that he was withdrawing from his friends prior to the pandemic and was spending more time by himself. Overall, the Veteran has demonstrated a level of impairment consistent with the 70 percent criteria, and his symptoms have caused occupational and social impairment in most of the areas. Significantly, as noted above, he has experienced suicidal ideations, which resulted in one hospital admission, and he has become more withdrawn. Thus, resolving any reasonable doubt in favor of the Veteran, a 70 percent evaluation is warranted. The Board has also considered whether the Veteran is entitled to an evaluation in excess of 70 percent at any time during the appeal period. However, he has not been shown to have gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of closes relatives, own occupation, or own name. Indeed, VA treatment records show that the Veteran has been alert and oriented with normal speech. He has also denied having auditory or visual hallucinations, paranoia, delusions, and homicidal ideations. A June 2016 VA examiner indicated that the Veteran has a depressed mood, anxiety, and disturbances of motivation and mood. However, none of the symptoms contemplated in the rating criteria for a 100 percent evaluation were noted. In fact, the examiner found him to be alert and oriented and indicated that he was able to accomplish independent activities of daily living. He also denied having homicidal ideation. The November 2020 VA examiner indicated that the Veteran had a depressed mood, anxiety, and suicidal ideation. However, no other symptoms indicative of a 100 percent evaluation were noted. In fact, the examiner found his hygiene, grooming, and speech to be normal. It was also noted that the Veteran's thought processes were goal-directed, and his attention and concentration were good. There were no memory impairments, and his judgment and insight were adequate. In addition, the June 2016 and November 2020 VA examiners found that the Veteran has 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. Such a finding is commensurate with a 30 percent evaluation. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, the Board finds that the Veteran's unspecified anxiety disorder with depression has not been productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). With regard to occupational impairment, the Veteran told the November 2020 VA examiner that he retired after 24 years of federal service. The Board acknowledges that there is documentation of some social impairment, including withdrawal and isolation. However, the Veteran told the June 2016 VA examiner that he is married and lives with his wife, and he described the relationship as positive and supportive. He also indicated that he enjoyed time with his daughter and son-in-law. In addition, the Veteran told the November 2020 VA examiner that he feels close to his family members and has maintained a friendship with someone with whom he went to college. As such, it cannot be said that he has total social impairment. After considering the evidence of record, the Board finds that the Veteran's symptoms and impairment more closely approximate the criteria for the 70 percent disability rating. Overall, the Veteran has not demonstrated a level of impairment consistent with the criteria for a 100 percent evaluation during the appeal period. Mauerhan, supra, Vazquez-Claudio, supra. Thus, the criteria for a total evaluation have not been met or approximated during the appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9400. Accordingly, the Board concludes that the weight of the evidence is against a rating in excess of 70 percent for an unspecified anxiety disorder with depression. As such, the benefit-of-the-doubt rule does not apply. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.