Citation Nr: 22016283 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 12-13 593 DATE: March 21, 2022 ORDER Prior to September 28, 2020, entitlement to an initial rating of 50 percent, but no higher, for generalized anxiety disorder is granted. Entitlement to an initial 10 percent rating for gastroesophageal reflux disease (GERD) with esophagitis for the entire appeal period is granted. REMANDED Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 28, 2020, the Veteran's generalized anxiety disorder manifested in occupational and social impairment with reduced reliability and productivity. 2. The Veteran's GERD with esophagitis manifested in recurrent epigastric distress with pyrosis and substernal pain, but not considerable impairment of health. CONCLUSIONS OF LAW 1. Prior to September 28, 2020, the criteria for an initial rating of 50 percent, but no higher, for generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9400. 2. The criteria for an initial 10 percent rating for GERD with esophagitis for the entire appeal period have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 2006 to March 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of an agency of original jurisdiction (AOJ) the Department of Veterans Affairs (VA). A February 2017 Board decision, among other issues, denied a compensable initial rating for GERD and denied an initial rating in excess of 30 percent for generalized anxiety disorder. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2017, the Court granted the parties' joint motion for partial remand (JMPR), remanding these matters to the Board for review. The Board then remanded the issues for further development. A November 2020 rating decision granted an initial 10 percent rating for GERD effective October 1, 2020, creating staged ratings. A December 2020 rating decision granted an initial 100 percent rating for generalized anxiety disorder effective September 28, 2020. Therefore, the matter on appeal is now limited to the time period prior to September 28, 2020, and the Board must now consider entitlement to an initial rating in excess of 30 percent for generalized anxiety disorder prior to September 28, 2020. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The evidence raises the issue of unemployability due to his service-connected anxiety disorder. Accordingly, the Board finds that Rice is applicable and TDIU is inferred as part of the claims for increased ratings and is an issue on appeal. Increased Rating Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generalized Anxiety Disorder Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. A 100 percent rating 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 inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran's parents submitted statements to support the Veteran's claim, noting that they observed the Veteran feeling ill, anxious, and nervous since military service, and his mother reported hearing the Veteran vomit. At a June 2010 VA mental disorders VA examination, the Veteran stated that he had been married for three years. He reported some strain on the relationship due to his wife being located in another state to finish her undergraduate degree. He noted that other than the distance his relationship was "great." He reported that he has two good friends in his current town and one good friend in the city where he was relocating. He indicated that he enjoys reading, working out, and playing guitar. He denied a history of suicide attempts or violence/assaultiveness. The examiner opined that the Veteran appears to be functioning well. He had a good social network and enjoyed doing many activities. He had several meaningful relationships in his life. The Veteran slept poorly and got five hours of sleep on a good night and several times per week only had one hour per night. Mental status evaluation revealed that the Veteran was clean, neatly groomed, and appropriately dressed with unremarkable psychomotor activity. His speech was unremarkable and his attitude was cooperative. His affect was normal and his mood was good. He was oriented in three spheres. His thought process and thought content were unremarkable. His insight and judgment were intact. There was no inappropriate, obsessive, or ritualistic behavior. The Veteran endorsed panic attacks which manifested as episodes of daily vomiting which eased his anxiety. He denied suicidal and homicidal thoughts. He had good impulse control and denied episodes of violence. The Veteran reported that his motivation is good and he had a lot of goals but occasionally had difficulty accomplishing tasks because he felt "exhausted" all the time. His recent, remote, and immediate memory was intact. The examiner noted that the Veteran was unemployed for the summer before he starts school full-time. The Veteran denied that his unemployment was due to his mental disorder. The examiner diagnosed the Veteran with generalized anxiety disorder. The Veteran reported that he had constant anxiety with symptoms including nausea and vomiting. The vomiting normally occurred during episodes of panic. The examiner found that the Veteran's disability manifested in reduced reliability and productivity. The examiner explained that the Veteran had panic attacks at least once per day and often several times per day. During these episodes, he vomited, which released his anxiety and tension. In May 2012, the Veteran stated that he had daily panic attacks with vomiting. He explained that his panic attacks were hindering his ability to find work, participate in class, make friends, and be a normal person. He stated that his entire personality had been altered by his disorder and that he had made calls to the suicide hotline. In the June 2012 statement of accredited representative, it was noted that his anxiety occurred at least 3 to 4 times per week. He had problems at home and work when he experienced the anxiety. In a June 2014 VA Form 28-1902w, Rehabilitation Needs Inventory, the Veteran stated that the symptoms of generalized anxiety disorder manifested in depression, panic attacks with nausea and vomiting, his speech got befuddled and illogical, and his relationships were harmed. In September 2020, the Veteran was provided a VA examination. The report shows a diagnosis of generalized anxiety disorder. The examiner found that the Veteran had occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking, and/or mood. As to history of the disability, the Veteran reported that he was married, but separated. He stated that his wife left while he was in the military but has not had any contact with her for approximately 10 years. He did not have children and had not been in a relationship. He stated that he did not have friends. He had one friend, but had a falling out in early 2020. He currently lived in his vehicle. The Veteran did not have any mental health treatment since his last examination and was not on any psychiatric medications. With regard to his current symptoms, he reported that he continued to experience significant symptoms of anxiety. He stated that he threw up when he was anxious and that his symptoms worsened over the past 3 years. He explained that he did not throw up as often but tended to get more symptoms of panic attacks. His panic symptoms also included sweating, heart racing, chest tightness, nausea, and trouble breathing. He also reported symptoms of visual hallucinations which he had for years but worsened since he became homeless in early 2020. He reported symptoms of feeling keyed up/on edge, irritability, muscle tension, chronic headaches, concentration problems, and chronic fatigue. He reported an extreme amount of anxiety to the point that he obsessionally pulled out hairs on his face. Due to his symptoms, he did not shower daily. He stated that he showered approximately every 3 weeks. He only shaved to prevent him from pulling out hairs on his face. The report shows symptoms of depressed mood; anxiety; panic attacks more than once per week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; persistent delusions and hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living. On examination, the Veteran was mildly disheveled. Speech was normal. Eye contact was somewhat reduced. The Veteran was cooperative and friendly. The Veteran's mood was extremely anxious and depressed with congruent affect. The Veteran denied suicidal ideation and homicidal ideation but did not report recent passive thoughts of suicide. He reported auditory and visual hallucinations. His thoughts were linear and goal-directed. Impulse control and insight were fair. The Veterans Crisis Line was provided to the Veteran. In an addendum opinion to the September 2020 VA examination report, a VA examiner found that, the Veteran continued to meet the criteria for generalized anxiety disorder. The Veteran's symptoms of anxiety-related vomiting, abdominal muscle strain, and thoughts of suicide specifically aided in making the diagnosis. His chronic anxiety appeared to be quite debilitating at present and he had panic attacks. The Veteran reported that he throws up when he gets anxious, which occurred often. His panic symptoms included sweating, heart racing, chest tightness/muscle straining, nausea, and trouble breathing. He also endorsed symptoms of visual hallucinations which he endorsed for years but that they worsened since he became homeless in early 2020. He reported symptoms of feeling keyed up/on edge, irritability, muscle tension, chronic headaches, concentration problems, and chronic fatigue. In addition, the Veteran reported passive thoughts of suicide without active suicidal ideation, plan, or intent. The Board finds that a higher initial 50 percent rating is warranted for generalized anxiety disorder prior to September 28, 2020. The evidence of record shows that the Veteran experienced daily panic attacks with vomiting, hindering his ability to work and have relationships. In addition, the 2010 VA examiner found that the Veteran's symptoms manifested in occupational and social impairment with reduced reliability and productivity. However, a 70 percent rating is not warranted. The Board has considered the Veteran's 2012 statement that he called the suicide hotline. Though suicidal ideation alone can support a 70 percent rating, see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017), the evidence of record does not reflect the frequency, duration, and severity of those thoughts to warrant a rating higher than 50 percent. The 2010 VA examination report shows that the Veteran denied thoughts of suicide. In December 2015, the Veteran again denied suicidal ideation. The evidence prior to September 29, 2020, does not show the severity of symptoms similar to 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); or inability to establish and maintain effective relationships. The Board acknowledges the Veteran's statements that his symptoms hindered his relationships and ability to find a job. However, again, the evidence of record consisting of the 2010 VA examination report shows that the Veteran had friends, exhibited normal speech, had logical and goal directed thoughts, and was oriented to person, place, and time. Moreover, the evidence does not reflect total occupational and social impairment prior to September 28, 2020. The 2010 VA examination report shows that the examiner found that the Veteran's anxiety disorder did not manifest in total occupational and social impairment. As to the presence of hallucinations, the Board recognizes the Veteran's report in the 2020 VA examination that he experienced those for years, but they worsened when he became homeless in 2020. However, it would be conjecture for the Board to assign an effective date based on this report of hallucinations without any accompanying clinical findings. Indeed, the 2010 VA examination report did not reflect the presence of hallucinations, the Veteran's statements prior to the September 2020 VA examination report do not reflect a report of hallucinations, and there are no medical treatment records that demonstrate hallucinations prior to September 28, 2020. Accordingly, the Board finds that a 100 percent rating is not warranted prior to September 28, 2020. In light of the above, the weight of the evidence is against an initial rating in excess of 50 percent for generalized anxiety disorder prior to September 28, 2020. The claim is denied. GERD The Veteran's GERD is unlisted and rated by analogy under Diagnostic Code 7346 for hiatal hernia. Under this code, a 10 percent rating is assigned with two or more of the symptoms for 30 percent rating of less severity. A 30 percent rating is assigned for symptoms of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. The Board observes that the words "considerable" and "severe" are not defined in the Rating Schedule. "Considerable" is defined as "large in extent or degree." Merriam-Webster's Collegiate Dictionary 267 (11th ed. 2012). "Severe" is defined as "very painful or harmful." Id. at 1140. Similarly, the terms "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A review of the Veteran's service treatment reports reflects that the Veteran underwent an esophagogastroduodenoscopy (EGD) in January 2009 which revealed two small linear erosions consistent with grade A esophagitis. A diagnosis of Grade I esophagitis was rendered. The records reflect treatment for anxiety related vomiting and heartburn. At a May 2010 VA examination, the Veteran reported once daily emesis with over-the-counter treatment with Tums. The Veteran's gastrointestinal symptoms included nausea, vomiting, and heartburn. The Veteran denied diarrhea, constipation, indigestion, abdominal swelling, regurgitation, dysphagia, hematemesis, and melena. The Veteran reported daily pain in the epigastric area after he throws up relieved after one to two hours or after taking Tylenol or sitting in a hot tub. A barium study revealed gastroesophageal reflux. The Veteran was reported to be well-developed, thin built, in good nutrition status, and in no distress. He reported some weight loss. Physical examination of the abdomen was normal with normal bowel sounds, no abnormality of auscultation, no palpable mass, and no tenderness. The Veteran was diagnosed with a history of esophagitis, currently stable and GERD with no effects on the Veteran's usual occupation. In May 2012, the Veteran stated that he had constant abdominal pain and acid reflux. In the June 2012 statement of accredited representative, it was noted that he took medication for acid reflux. On October 15, 2020, the Veteran was provided a VA examination for esophageal conditions. The report shows a diagnosis of GERD and esophagitis. Regarding the history of the condition, the Veteran reported daily panic attacks with vomiting. He took Prilosec, had abdominal pain and vomiting with a sour taste in mouth. The Veteran's symptoms included pyrosis, substernal pain, and vomiting. The examiner did not find that the Veteran's disability manifested in symptoms productive of considerable impairment of health. Currently, the Veteran's esophagitis was quiescent with no symptoms consistent with esophagitis. The Board finds that an initial 10 percent rating is warranted under Diagnostic Code 7346 for the entire appeal period. Under Diagnostic Code 7346, a compensable rating requires two or more symptoms which include persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The 2010 VA examination report reflects that the Veteran's GERD manifested in recurrent epigastric distress with pyrosis, two of the symptoms of the criteria for a 30 percent rating under Diagnostic Code 7346. However, a rating in excess of 10 percent is not warranted. Though the Veteran reported some weight loss during his 2010 VA examination, the examiner did not attribute weight loss to his disability and noted that the Veteran was in good nutrition status. Likewise, the Veteran also reported abdominal pain, but the VA examiners did not attribute his abdominal pain to his service-connected GERD. The VA examination reports also do not reflect considerable impairment of health, regurgitation, or dysphasia. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he has not stated or provided evidence that his GERD has resulted in considerable impairment of health. The Board has considered whether any other Diagnostic Codes are relevant to the disability at issue. The selection of a particular diagnostic code "is a determination that is completely dependent upon the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc). There is no evidence of esophageal spasm, stricture, or diverticulum to warrant a rating under Diagnostic Codes 7203 to 7205. In addition, as pointed out by the JMPR, the prior Board decision did not address whether the Veteran's disability could be alternatively rated under Diagnostic Code 7305, for a duodenal ulcer. The Board finds that the manifestations of the Veteran's disability, including epigastric distress, heartburn (pyrosis), substernal pain, are more appropriately rated under Diagnostic Code 7346. While the Veteran has reported vomiting, the medical evidence demonstrates that his vomiting is a symptom of his panic attacks. While the October 2020 VA examination report listed vomiting as a symptom of GERD, the examiner noted in the history of the condition that the Veteran had vomiting with panic attacks. The September 2020 VA mental disorders examination report also shows that the Veteran experienced vomiting with his panic attacks, a manifestation of his service-connected anxiety disorder. To the extent that the Veteran requests an initial rating in excess of 10 percent, the weight of the evidence is against the claim. The claim is denied. REASONS FOR REMAND Here, the Veteran's anxiety disorder has been assigned a 100 percent rating effective September 28, 2020, during the pendency of the appeal. A grant of a 100 percent disability rating does not always render the issue of TDIU moot. VA has a duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)). At this time, it would be premature for the Board to make any finding as to whether TDIU is warranted based on a single service-connected disability, and therefore, the Board will not limit TDIU to the period on appeal prior to September 28, 2020. Remand is required to develop and adjudicate the claim for TDIU. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Additionally, proper notice must be provided the Veteran regarding such a claim. 2. Adjudicate the issue of entitlement to TDIU, to include whether referral for extraschedular consideration is warranted. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and after an appropriate time for response, return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.