Citation Nr: A25050737 Decision Date: 06/10/25 Archive Date: 06/10/25 DOCKET NO. 220829-272049 DATE: June 10, 2025 ORDER Entitlement to an initial rating in excess of 30 percent for generalized anxiety disorder (GAD) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for GAD 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 9400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2002 to April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the Augus 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the October 2021 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review in a January 2022 rating decision, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The General Rating Formula for Mental Disorders at 38?C.F.R. §?4.130 provide the following ratings for psychiatric disabilities, including GAD: A 30 percent disability 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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. 38?C.F.R. §?4.130, Diagnostic Code 9411. Under the formula, a 70 percent rating is warranted where there is 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 worklike setting); inability to establish and maintain effective relationships. 38?C.F.R. §?4.130, Diagnostic Code 9411. A 100 percent rating is warranted where there is 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38?C.F.R. §?4.130, Diagnostic Code 9411. The United States Court of Appeals for the Federal Circuit held that evaluation under 38?C.F.R. §?4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16?Vet. App.?436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 117-18; 38?C.F.R. §?4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38?C.F.R. §?4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. Entitlement to an initial rating in excess of 30 percent for GAD The Veteran seeks an increased initial rating for his GAD. After review of the evidence, the Board finds that a rating in excess of 30 percent is not warranted. The Veteran does not undergo psychiatric treatment. There are two mental health notes within primary care notes in his VA treatment records. In March 2020, the Veteran reported experiencing anxiety and depression. The Veteran reported recently moving from Texas to Nebraska to escape an abusive and controlling girlfriend who was using illicit substances. Upon arriving in Nebraska, the Veteran and his two-year-old son were living with his child's mother, to whom he was still married, and her partner. Shortly after their arrival, the Veteran was able to secure his own housing. He denied experiencing suicidal ideation or thoughts to harm others. He described adequately coping with stressors. He reported having a good support system. He reported having leisure interests, and enjoyed spending time with his son and taking him to the park and zoo. He reported getting along well with his child's mother and her partner. In April 2020, the Veteran reported cooperation with his estranged wife in coparenting. He reported no longer feeling distress regarding the break-up with his girlfriend, stated he had moved on, and was adjusting well. As to psychological symptoms, the Veteran reported that he was managing his anxiety and depression. He denied suicidal or homicidal ideation, or thoughts to harm others. He reported having a good support system and having leisure interests. He reported that he was no longer worried about finances. The Veteran detailed his support system. The Veteran had just started a job, and his son's mother was providing childcare for his son. Additionally, his brother was selling the Veteran's personal belongings that remained in Texas and was going to assist the Veteran in selling his house there. Due to the COVID-19 Pandemic, the Veteran spent most of his non-work time at home with his son, where they often played games together. The Veteran's grooming and hygiene were good. His motor behavior was normal. His eye contact was good and his facial expressions were normal and responsive. His attitude was cooperative while his mood was neutral. His affect was appropriate and variable, while his speech was relevant and spontaneous. His thought processes were logical and goal-directed. His thought content was relevant and his insight was fair. The Veteran submitted a February 2020 private disability benefits questionnaire (DBQ) in which the examiner diagnosed post-traumatic stress disorder (PTSD) and somatic symptom disorder with depressive and anxious features. The examiner assessed these psychiatric disorders as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran reported daily pain in his knees which prevented him from being as physically active as he desired. The examiner recorded symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. Upon VA examination in December 2020, the examiner detailed the severity of the Veteran's GAD. The examiner assessed the Veteran's GAD as causing 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. The Veteran reported having the "best" relationship with his son, and spending free time with his family. He reported working for Warner Spectrum since his discharge, described his work as 'good," and denied any significant occupational impairment related to mental health symptoms. The Veteran reported sleep difficulties related to worry and anxiety. He reported feeling depressed several days a week, feeling guilt and hopelessness, anhedonia, social withdrawal, and decreased engagement in previously-enjoyed activities. The examiner recorded symptoms of anxiety and chronic sleep impairment. The Veteran denied suicidal and homicidal ideation. The Veteran presented to the examination dressed neatly and well kempt. His speech was logical and goal oriented. He was cooperative, and oriented to person, place, situation, and time. His concentration and attention were good, while his judgment and insight were fair. He described his mood as "mixed with happiness, sometimes a little depression and fear." The examiner described his affect as bright with no objective distress. Upon VA examination in February 2021, the Veteran presented with similar symptoms as those detailed in the prior examination. However, he now lived with his wife once more and described his marriage as stable. The examiner recorded symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran submitted a March 2021 VA Form 21-4138, Statement in Support of Claim, in which he checked the following boxes on a list of psychiatric symptoms: anger, anxiety, chronic sleep problems, danger of hurting self or others, denial, depression, emotional numbing, flashbacks, guilt, intrusive thoughts, neglects family, no friends, panic attacks, problems at work, sense of helplessness, suicidal feelings/thoughts, and suspiciousness. No context or details were given in conjunction with the checklist. Upon VA examination in October 2021, the examiner assessed the Veteran's GAD as causing 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. The Veteran continued to be married to his wife, and reported having a good quality marriage. He reported rebuilding their relationship after his wife had a mid-life crisis in Texas. The Veteran had recently applied for an advanced position at Spectrum and had received notice of a second interview. He denied problems with attendance or completing tasks. He reported being number one in meeting metrics in his position, and getting along well with coworkers and supervisors. He reported having excessive worry several times per week to daily. He denied constant anxiety, and reported working and being engaged in activities. He reported not feeling depressed anymore. He reported he had not had suicidal ideation since 2010. He reported panic attacks less often than four times per year. More often, he stated, he experienced panic in his sleep triggered by dreams. The examiner recorded symptoms of anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported to the examination on time with a friendly demeanor but tense overtones. He was dressed in clean, casual clothing and neatly groomed. His speech was normal and easy to understand. He was fully engaged throughout the evaluation, and quick to establish rapport. The Board has no reason to question the competency or credibility of the private or VA examiners. The VA examiners consistently recorded the Veteran's pre-military, military, and post-military history, and the current symptoms experienced by the Veteran. The record presented by these VA examination reports are consistent with each other, showing a Veteran who experienced anxiety and excessive worry in the context of significant life events. However, this picture differs greatly from the one presented in the private DBQ. The Board acknowledges that the private DBQ was taken while the Veteran was experiencing abuse from his then-girlfriend and estrangement from his wife, which may explain the severity of the symptoms. While the Board does not discredit the reported symptoms, the VA examinations are far more detailed in their assessment of the Veteran's symptoms. Therefore, the Board affords them greater weight. Likewise, the VA examinations differ from the Veteran's own checklist of symptoms and his representative's assertions that his symptoms are far more severe than those contemplated by the 30 percent rating. However, the VA examinations and the two VA treatment records contain far more detail than the Veteran's checklist without additional statement or context. As such, the Board affords the VA examinations and the VA treatment notes, which largely constitute the Veteran's own reports of his symptoms to examiners and providers, more probative weight than the mere checklist and claims documents seeking increased ratings. Together, the VA examinations and treatment notes show a Veteran who handled a period of significant stress with remarkable resilience and efficiency. As the Veteran does not undergo psychiatric treatment, his treatment records provide little evidence as to the severity of the Veteran's GAD. However, the two entries contain a clear picture of an individual functioning quite well during significant stressful events, namely a global pandemic, an interstate move with a toddler, starting a new job assignment, preparing to sell a home, and coparenting with a former partner. Likewise, the VA examinations show a Veteran consistently presenting with symptoms of anxiety, chronic sleep impairment, and depressed mood, but functioning well in his employment and his interpersonal relationships. In particular, the Board notes that the Veteran maintained his employment and strong relationship with his son during an interstate move and reconciliation with his wife. To qualify for an increased rating, the evidence must show reduced reliability and productivity. To the contrary, the evidence shows a Veteran who is highly reliable and productive such that he is able to handle significant life events with remarkable efficiency. Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for his service-connected GAD, and the claim is denied. Leetra J. Harris Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.S.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.