Citation Nr: 22051153 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 14-20 646 DATE: September 8, 2022 ORDER An initial disability rating of 70 percent for panic disorder (without agoraphobia) with anxiety and depression is granted for the entire period on appeal. FINDING OF FACT The Veteran's psychiatric symptoms and impairment due to his service-connected panic disorder (without agoraphobia) with anxiety and depression more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent for panic disorder (without agoraphobia) with anxiety and depression are met for the entire period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434-9412. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1980 and from September 1981 to March 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2021 decision, the Board, in pertinent part, denied an initial disability rating higher than 10 percent prior to April 23, 2021 and higher than 50 percent thereafter for panic disorder (without agoraphobia) and granted service connection for anxiety with depression. The Veteran appeal the denial of benefits to the United States Court of Appeals for Veterans Claims (Court). In a March 2022 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded that part of the July 2021 decision that denied entitlement to an initial disability rating higher than 10 percent prior to April 23, 2021 and higher than 50 percent thereafter for panic disorder (without agoraphobia). In an August 2021 rating decision implementing the July 2021 grant of service connection for anxiety with depression, the AOJ incorporated the evaluation for anxiety with depression into the evaluation for panic disorder (without agoraphobia) and awarded an initial 30 percent evaluation for panic disorder (without agoraphobia) with anxiety and depression prior to April 23, 2021, with a 50 percent evaluation thereafter remaining. Increased Ratings Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Veteran is assigned a 30 percent rating for panic disorder (without agoraphobia) with anxiety and depression under 38 C.F.R. § 4.130, Diagnostic Code 9434-9412 prior to April 23, 2021 and a 50 percent rating thereafter. A 30 percent rating will be assigned when there is evidence of 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 normal conversation), 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, and recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted for 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. The criteria for a 70 percent rating are as follows: 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; obsessive 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 worklike setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The criteria for a 100 percent rating are as follows: 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name. 38 C.F.R. § 4.130. The symptoms listed in the rating formula are only examples, and evidence of those specific symptoms is not required to show that the Veteran is totally disabled. The primary consideration is whether the manifestations of the service-connected psychiatric disability result in a level of social and occupational impairment, regardless of whether the Veteran demonstrates the specific symptoms listed in the rating formula. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 1. An initial disability rating higher than 30 percent for panic disorder (without agoraphobia) with anxiety and depression prior to April 23, 2021 and higher than 50 percent thereafter The Veteran contends he is entitled to a 70 percent disability rating from August 2, 2010, the entire period on appeal. July 21, 2022, Appellate Brief. After reviewing the evidence of record, the Board finds that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating during the entire period on appeal. The Veteran underwent several VA examinations during the period on appeal. In November 2010, the Veteran reported that he has felt melancholy off and on for most of his life but noted his mood seemed more depressed since losing his job earlier in the year. He described his sleep as terrible because he lies awake every night thinking about everything that is going on. The Veteran further endorsed feelings of worthlessness, low energy, and recurring suicidal ideations without current plan or intent. The Veteran reported similar symptoms in August 2011. During that examination, the symptoms associated with anxiety and depression were excessive worry with irritability, restlessness, tension, less interest in activities, changes in appetite, low energy, feelings of worthlessness, and passive suicidal ideations. The August 2011 examiner opined that the Veteran's symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. In September 2012, the Veteran presented with a depressed mood and the examiner agreed that the Veteran's symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. The symptoms associated with the Veteran's service-connected psychiatric disorders were noted to be depressed mood, panic attacks that occur weekly or less often, mild memory loss, impairment of short and long-term memory, and disturbance of mood and motivation in November 2014. The examiner opined 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. After the Board's February 2018 remand, the Veteran underwent VA examinations in November 2019 and April 2021. The Board found that the November 2019 examiner did not comply with remand directives and remanded the issue for an adequate examination in February 2020. During an April 2021 examination, the examiner determined that the symptoms associated with the Veteran's service-connected psychiatric disorders included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. VA treatment records demonstrate that the Veteran experienced panic attacks as frequently as three to four times a week at times, occasional thoughts of suicide, depressed mood, frequent anxiety, and difficulty sleeping. During the period on appeal, clinicians adjusted the Veteran's medication several times in attempts to control these symptoms. The Veteran also submitted multiple written statements in support of his claim. In a January 2011 statement, he explained that his life has been a constant struggle to quell the anxiety and panic. He contends that he has continued to have bouts of depression, problems with relationships, and is unable to maintain stable work due to these issues. He described his mood as depressed and almost suicidal in April 2011. The Veteran asserted that his preoccupation with his anxious mood and increased panic keeps him in a depressed mood that affects all facets of his life. June 3, 2014, VA Form 9. In a May 2022 statement, the Veteran stated that from at least 2010, he has experienced frequent panic attacks, anxiety, depressed mood, suicidal ideation, trouble sleeping, loss of motivation and energy, and difficulty maintaining relationships. July 21, 2022, Correspondence. He explained that thoughts of suicide occur about two to three times each year. The Veteran also described daily panic attacks, poor hygiene, and avoidance of social interactions. A private psychosocial evaluation and medical opinion. July 21, 2022, Medical Treatment Record Non-Government. The examiner opined that from August 2010 to the present, the symptoms associated with the Veteran's panic disorder (without agoraphobia) with anxiety and depression resulted in occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood. The examiner found the symptoms demonstrated in the record and from an interview with the Veteran included near-continuous depression and anxiety affecting his ability to function independently, appropriately, and effectively; difficulty adapting to stressful circumstances, including work or a work-like setting; an inability to establish and maintain effective relationships; impaired impulse control; severe isolation from others; disengagement from his extended family; and, compromised self-care including problems maintaining his hygiene. The Board finds that these symptoms are indicative of occupational and social impairment in most areas, which would warrant a 70 percent rating under the rating schedule. The evidence of record contains credible, competent and probative lay and medical evidence of frequent panic attacks, problems establishing and maintaining effective relationships, occasional passive suicidal thoughts, and difficulty adapting to stressful circumstances throughout the period of appeal. While the frequency and severity of the symptoms of the Veteran's panic disorder (without agoraphobia) with anxiety and depression may have increased or decreased during the appeal period and at times may not even rise to the level contemplated by a 70 percent rating, resolving all doubt in the Veteran's favor, the 70 percent evaluation is appropriate. Accordingly, the Board finds that a 70 percent rating is more nearly approximated throughout the entire period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.130, DC 9411; see Bankhead, supra. The Board concludes that a rating in excess of 70 percent, however, is not warranted at any time during the period on appeal. The evidence of record does not support a finding that the Veteran's impairment due to his panic disorder (without agoraphobia) with anxiety and depression has more nearly approximated total occupational and social impairment. Moreover, the Veteran has not argued that his impairment more nearly approximated total occupational and social impairment. The Veteran's symptoms do not rise to the severity or frequency warranted for a rating in excess of 70 percent as he has not demonstrated 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 (ADLs) (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, own name at any time during the period on appeal. While the Veteran has endorsed occasional suicidal thoughts, he explained that it only occurs two to three time per year, and he has demonstrated an ability to manage those thoughts by thinking positive and keeping himself busy. See July 21, 2022, Correspondence. In light of the above, the Board finds that the competent and probative evidence is nearly equal as to whether the severity, frequency, and duration of the Veteran's symptoms of his panic disorder (without agoraphobia) with anxiety and depression resulted in occupational and social impairment with deficiencies in most areas and the benefit-of-the-doubt rule is for application. Lynch v. McDonough, 21 F. 4th 776, 780-81 (Fed. Cir. 2021). Resolving reasonable doubt in favor of the Veteran, a disability rating of 70 percent for panic disorder (without agoraphobia) with anxiety and depression is granted throughout the period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. B. Jackson, Associate 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.