Citation Nr: 22012525 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 18-40 279 DATE: March 4, 2022 ORDER Entitlement to an initial disability rating in excess of 30 percent for service-connected anxiety disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's anxiety disorder symptoms has not more closely approximated occupational and social impairment with reduced reliability and productivity, or worse impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for a anxiety disorder 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 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2017 rating decision of the Department of Veterans Affairs (VA). 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. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. 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 past 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 generally 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 Veteran seeks a higher evaluation for his service-connected anxiety disorder, which is currently evaluated as 30 percent disabling under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. Under this section, a 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted if it is productive of 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. A 70 percent rating contemplates 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 an inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted for 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 ability 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. The Board notes that the symptoms enumerated under the schedule for rating mental disorders 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). When the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). A November 2016 VA treatment note shows that the Veteran's wife noted that he was depressed. She stated that he used to be very outgoing, but then, now, did not want to do anything. The Veteran was afforded a VA PTSD examination in December 2016. The VA examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. A diagnosis of unspecified anxiety disorder was noted. The Veteran reported that he had been married to his fourth wife for 18 years at that time. His relationship was non-existent with six of his children, but he had a good relationship with his youngest daughter. The Veteran's relationship with his siblings was "great." It was noted that he enjoyed playing computer games and reading. He attended church weekly. He reported experiencing sleep problems and anxiety. He reported no current aggressive behavior. It was noted that he worked for 22 years at plant before it closed. He then worked at a company that rented and sold construction equipment for 11 years before he retired. Upon examination, symptoms of anxiety, suspiciousness and chronic sleep impairment were found. The VA examiner noted that the Veteran was dressed casually and appropriately, and his grooming and hygiene were within normal limits. He was oriented to person, place and time. His physical movement exhibited a normal gait, with normal level of activity during the evaluation. The Veteran's speech was clear, coherent, goal-directed, and normal in rate and volume. His insight was deemed to be intact, overall. No psychotic symptoms, delusions, or hallucinations were noted or reported. The Veteran exhibited appropriate eye contact, was alert and his mood was normal, with mood-congruent affect. He denied any history of suicidal/homicidal ideation or attempts. His short-term memory appeared good, and his long-term memory appeared intact. It was noted that his concentration was mildly impaired. His abstract thinking appeared intact, and his judgment was responsible. An April 2017 VA treatment note shows that the Veteran denied suicidal ideation. An August 2018 VA psychology note shows that the Veteran was alert and oriented to person, place, time; that his eye contact was appropriate; and that his non-verbal behavior was unremarkable. The Veteran's speech was normal in rate, rhythm, and volume, and the content was appropriate to context. His thought process was logical, linear, and goal-directed. His attention and memory appeared to be within normal limits. His affect was euthymic with appropriate affective range and his insight and judgment were fair. No active suicidal or homicidal ideation, intent, or plan were found. He did not report or demonstrate any psychotic behavior. After a review of the above evidence, the Board does not find that the Veteran's symptoms are of similar severity, frequency, and duration as those described in the higher rating criteria for a 50 percent disability rating. Notably, the evidence does not show that the Veteran displays a flat affect, unusual speech patterns, or impairment of short- and long-term memory or impaired judgement. Impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships are also not found. Throughout the appeal period, the evidence has shown that the Veteran's speech is coherent, and his judgment is intact. The VA examiners found that the Veteran was properly oriented and was free of delusions, obsessional rituals, illogical speech, and suicidal and homicidal ideations. He had not been shown to be a danger to himself or others. There is no evidence of circumstantial, circumlocutory, or stereotyped speech or difficulty in understanding complex commands. Here, the Veteran's symptoms are simply not of sufficient severity to support a higher rating. While the Board is sympathetic to the difficulties presented by the Veteran's anxiety disorder, the evidence of record does not support a rating in excess of 30 percent. Neither the objective findings shown on examination nor the subjective reports from the Veteran are more consistent with a 50 percent evaluation than with a 30 percent evaluation. The claim accordingly must be denied. Other Considerations Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, it is noted that the Veteran is retired. Regardless, the Veteran has not contended, and the evidence does not otherwise suggest, that his service-connected anxiety disorder precludes substantially gainful employment. Accordingly, a TDIU claim ha]s not been raised, and no action pursuant to Rice is necessary. For the foregoing reasons, the Board finds that the evidence is persuasively against the claim for an initial rating in excess of 30 percent for anxiety disorder; there is no doubt to be resolved; and an increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.