Citation Nr: 25002001 Decision Date: 02/11/25 Archive Date: 02/11/25 DOCKET NO. 14-34 082 DATE: February 11, 2025 REMANDED Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder prior to July 12, 2022, and in excess of 70 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1978 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). As it pertains to the current matter, the Veteran perfected his appeal of an April 2012 rating decision that awarded service connection for an anxiety disorder with an initial disability rating of 30 percent. Over the course of the appeal period, the Veteran was granted a staged increased rating. Most recently, a September 2023 Board decision granted an initial disability rating of 50 percent for the period on appeal prior to October 22, 2019. The Board denied a disability rating in excess of 50 percent for the period from October 22, 2019, to July 11, 2022, and denied a disability rating in excess of 70 percent thereafter. The Veteran appealed that part of the September 2023 Board decision to the United States Court of Appeals for Veterans Claims (Court) to the extent that it denied an initial disability rating in excess of 50 percent for the period on appeal prior to July 12, 2022, and a disability rating in excess of 70 percent thereafter. In July 2024, the Court granted the Veteran's and the Secretary's amended joint motion for partial remand (JMPR), which found that remand was warranted for the Board to comply with its prior July 2018 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Acquired Psychiatric Disorder In this case, the Veteran was awarded service connection for an anxiety disorder with an initial disability rating of 30 percent from August 23, 2011. See April 2012 rating decision. In March 2013, the Veteran appealed the initial evaluation assigned for his anxiety disorder. See March 2013 correspondence. In connection with his service connection claim, the Veteran reported that his mental disorder was manifested by sleep impairment, memory impairment, depression, and outbursts of anger. See September and October 2011 VA Form 21-0781. A review of the available medical evidence of record shows that a VA health provider referred the Veteran for VA mental health treatment to address his anxiety in November 2009. The Veteran reported intermittent symptoms of anxiety (worse in public places), depression, low energy, decreased concentration, anhedonia, and sleep impairment in VA psychiatric treatment records from 2009 through 2011. The Veteran consistently denied suicidal ideation. See also June 2011 VA psychiatry note. No symptoms of psychosis or manic episodes were reported. On VA examination in March 2012, the examiner reported the Veteran's mental disorder was manifested by anxiety, diminished interest, sleep impairment and nightmares, difficulty concentrating, and exaggerated startle response. Additionally, the examiner noted the Veteran reported one fleeting incident of suicidal ideation seven to eight months earlier without plan or intent. The Veteran underwent another VA examination in September 2014. The Veteran indicated a major source of his anxiety was connected to social discomfort, especially being around large groups. However, the Veteran reported he was very happily married, and described his relationship with his stepdaughter in wholly positive terms. The examiner stated the Veteran appeared to function quite well in the confines of his immediate family and social circle. The examiner reviewed the Veteran's VA mental health treatment records, as well as the prior VA examination from March 2012. The examiner reported the Veteran's mental disorder was manifested by anxiety, avoidance behaviors, panic attacks that occurred about once per week on average, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran described daily irritability, and that he continued to harbor anger. The Veteran flatly denied suicidal ideation, but admitted to fleeting thoughts years ago when his depression was more pronounced. In February 2015, the Veteran's former representative submitted a psychological assessment from Dr. H.H. in support of the appeal for an increased rating. See January 2015 Mental Disorders Disability Benefits Questionnaire with associated correspondence. The Veteran reported that he was socially isolated and withdrawn. Dr. H.H. stated the Veteran's mental disorder was manifested by depressed mood; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Dr. H.H. stated that she believed the Veteran's mental disorder and social impairment was emotionally debilitating, and that the severity of his disorder related back to his original date of claim in August 2011. She cited to evidence she reviewed in support of her opinion, to include a June 2011 Vocational Rehabilitation Evaluation associated with Social Security Administration records. Dr. H.H. quoted an excerpt from the June 2011 Vocational Rehabilitation Evaluation which stated "...[the Veteran] was no longer employable in the open labor market. He was totally and permanently disabled from a medical standpoint." Notably, this particular quote from the June 2011 Vocational Rehabilitation Evaluation was not related to functional impairment from the Veteran's mental disorder. As it pertains to the current appeal, a July 2018 Board decision remanded the matter of an increased rating for the Veteran's anxiety disorder to afford him a new VA examination to determine the current severity of his mental disorder. In assessing the severity of the Veteran's psychiatric symptoms, the Board requested that the examiner "specifically comment on the findings within the January 2015 psychiatric assessment" from Dr. H.H. In an October 2019 VA mental disorders examination, the examiner noted the Veteran underwent a private psychological evaluation in January 2015, and that the Veteran did not recall how or why he was seen by Dr. H.H. The examiner did not comment on the findings of the January 2015 psychiatric assessment. In December 2020, the AOJ requested an addendum to the October 2019 examination to discuss and/or reconcile the findings of the January 2015 private psychiatric assessment. The Veteran was afforded another VA mental disorders examination in January 2021. With respect to the January 2015 private psychiatric assessment, the examiner noted the Veteran's currently diagnosed generalized anxiety disorder was a continuation of and the same diagnosis provided by the September 2014 VA examination and the January 2015 private psychiatric assessment. The Veteran's increased rating claim for his anxiety disorder was most recently before the Board in September 2023, at which time the Board granted an initial disability rating of 50 percent for the period on appeal prior to October 22, 2019; denied a disability rating in excess of 50 percent for the period from October 22, 2019, to July 11, 2022; and denied a disability rating in excess of 70 percent thereafter. The July 2024 amended JMPR found that remand was warranted because there was not substantial compliance with the Board's July 2018 remand instructions requesting that the examiner "specifically comment on the findings within the January 2015 psychiatric assessment" from Dr. H.H. Accordingly, the Board finds remand is necessary to comply with the terms of the July 2024 amended JMPR. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Obtain a new medical opinion pertaining to the severity of the Veteran's service-connected anxiety disorder over the course of the appeal period from August 2011. If an opinion cannot be provided without an examination, the Veteran should be scheduled for a new VA mental disorders examination. Based on a review of the record, and if necessary, a new examination, the examiner is asked to describe the Veteran's service-connected mental disorder in accordance with VA rating criteria, to include the Veteran's mental health symptoms/manifestations and resulting functional impairment over the course of the appeal period from August 2011. The examiner is asked to comment (such as discussing/reconciling any similarities and/or disparities) on the findings (i.e., mental health symptoms and functional impairment) within the January 2015 psychiatric assessment from Dr. H.H. and the other evidence of record. M. C. WILSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.