Citation Nr: 18124020
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-27 369A
DATE:	August 3, 2018
ORDER
Entitlement to an increased rating for service-connected anxiety disorder in excess of 30 percent prior to December 16, 2013, and in excess of 70 percent thereafter, to exclude periods of a total disability rating from March 14, 2017 forward, is denied. 
FINDING OF FACT
1. Prior to December 16, 2013, the Veteran’s service-connected anxiety disorder had not been manifested by symptoms of occupational and social impairment with reduced reliability and productivity.
2. From December 16, 2013 to March 13, 2017, the Veteran’s service-connected anxiety disorder had not been manifested by symptoms of total occupational and social impairment.
CONCLUSION OF LAW
1. Prior to December 16, 2013, the criteria for an initial rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413.
2. From December 16, 2013 to March 13, 2017, the criteria for a rating in excess of 70 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 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 June 1996 to December 1999 and July 2002 to July 2006.
During the pendency of the appeal, the RO issued a July 2015 rating decision, simultaneously with a July 2015 the Statement of the Case (SOC), which awarded an increased rating of 70 percent for anxiety disorder, effective December 16, 2013. As this does not represent a total grant of benefits sought on appeal, the claim for an increase rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board further notes that in August 2015 the Veteran filed his substantive appeal, albeit not on a VA Form 9, however such correspondence contains the necessary information consistent with 38 C.F.R. § 20.202.
Additionally, the Board notes that following the May 2016 certification of this claim to the Board, the RO added additional VA treatment records to the claims file and conducted another VA examination in April 2017. Subsequently, a May 2017 rating decision considered this evidence added to the record since the July 2015 SOC. The Board notes that generally in instances, such as this, where additional VA generated evidence is added to the file, a Supplemental Statement of the Case (SSOC) must be issued to inform the Veteran of any material changes in or additions to the information included in the prior SOC. See 38 C.F.R. § 19.31. However, the Board accepts the May 2017 rating decision as adjudication in place of a SSOC and finds no prejudice to the Veteran by adjudicating this claim on the merits because the Veteran was provided a list of the evidence considered within the May 2017 rating decision. See Bernard v. Brown, 4 Vet. App. 384, 390 (1993).  
Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. As such, the analysis below will focus specifically on what evidence is needed to substantiate the Veteran’s claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Increased Rating
The Veteran contends that his anxiety disorder is more severe than reflected by his current ratings during the appeal period.
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 
Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial rating cases, where the appeal stems from a granted claim of service connection with respect to the initial rating assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; see also 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
Under the General Rating Formula for Mental Disorders, the Veteran’s anxiety disorder is rated under Diagnostic Code 9413. Under Diagnostic Code 9413, a 30 percent rating is warranted when there is occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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, and mild memory loss (such as forgetting names, directions, recent events).
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 (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); and/or 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.    
According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). 
Ratings are assigned according to the manifestation of particular symptoms, but the use of a term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).
When determining the appropriate disability rating to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.  
Prior to December 16, 2013
In August 2012, the Veteran was provided a VA examination. The examiner found that anxiety was the only symptom applicable to the Veteran’s diagnosis. Additionally, the examiner opined that the Veteran experienced excessive worry, restlessness, feeling on edge, difficulty concentrating, and irritability. The examiner also opined that the Veteran’s anxiety disorder did not interfere with occupational and social functioning nor required continuous medication. The examiner further indicated that the Veteran was married.
In October 2013, the Veteran was provided a VA examination. The examiner found that anxiety was the only symptom applicable to the Veteran’s diagnosis. The examiner stated that the Veteran continued to meet the criteria for anxiety disorder, and that the Veteran’s reported symptom of claustrophobia was due to his anxiety disorder and did not warrant a separate diagnosis. The examiner opined that the Veteran’s anxiety disorder 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. The examiner also indicated that the Veteran was working for a chemical company and had switched positions since his last VA examination as he could not keep up with his sales performance. In his new job, the Veteran reported adequate relationships with coworkers, but having difficulty sitting still during meetings and concentrating on content for prolonged periods time. The Veteran reported that he was currently separated from his wife and her over reliance on him caused added pressure and he became resentful towards her. The Veteran reported maintaining a close relationship with his daughter. The Veteran denied having close friends, however, reported having a few friends from work with whom he maintained occasional contact.
The Board finds that a rating in excess of 30 percent for the Veteran’s anxiety prior to December 16, 2013 is not warranted.  Medical evidence and VA examinations did not report symptoms, such as flat affect, issues with speech, panic attacks more than once a week, difficulty understanding complex commands, impairment of short or long-term memory, impaired judgment, impaired abstract thinking, disturbances in mood or motivation, or difficulty in establishing and maintaining effective work and social relationships. Indeed, the Veteran was able to maintain stable employment and relationships with coworkers and family members. 
The Board has carefully considered the overall occupational and social impact of the manifestations of the service-connected anxiety, both those symptoms listed in the code and those that are not.  For this period, the Veteran maintained greater occupational and social functional then contemplated by the next higher rating of 50 percent. See Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio, 713 F. 3d 112. In making this determination, the Board has considered the functioning reflected in the relevant evidence, to include that detailed in the VA examinations, and then applied that evidence to the General Rating Formula.  The Board finds that the symptoms shown do not support the assignment of a 50 percent rating prior to December 16, 2013.
Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent at any time prior to December 16, 2013. 38 U.S.C. § 5107(b); 38 C.F.R. § 102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 
From December 16, 2013 to March 13, 2017
In January 2014, the Veteran underwent a VA psychological consult. The Veteran reported that symptoms of anxiety, excessive worry, claustrophobia, difficulty with concentration, difficulty was short-term memory, problems with sleep, difficulty sitting still, and feeling “trapped.” The psychologist opined that the Veteran’s reported symptoms were consistent with unspecified anxiety disorder. While the Veteran reported difficulty with concentration and memory, the psychologist noted that such problems were not apparent during the consultation. The Veteran specifically denied any auditory or visual hallucinations and suicidal or homicidal ideations. It was further noted that the Veteran was alert and oriented; had normal speech; and his thoughts were organized and relevant. There was no evidence of a thought disorder.
A June 2014 VA psychiatry note reported chief complaints by the Veteran of dysthymia, anxiety, and panic attacks; along with other symptoms such as poor interpersonal relationships, low self-esteem, isolative, “feeling trapped”, and loneliness. It was noted that the Veteran was well groomed and dressed, fully alert, had good eye contact, coherent speech, and goal directed thought process. The clinician did not note any psychotic features, memory impairments or suicidal or homicidal ideations.
An October 2014 VA psychiatry emergency department note reported that the Veteran presented due to a panic attack. The Veteran reported that this came on suddenly without any stressor. It was noted that the Veteran was regularly dressed, was altered and oriented; had good eye contact; was cooperative; had normal speech; and had logical thought process. The Veteran denied any hallucinations or suicidal or homicidal ideations alert and oriented. Subsequently, the Veteran reported feeling “very relaxed” and declined any hospital admission.
In June 2015, the Veteran was provided a VA examination. The examiner noted symptoms of depressed mood; anxiety; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbed motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to maintain effective relationships; and suicidal ideations. The examiner did clarify that the Veteran’s depressive symptoms were separate and distinct from his service-connected anxiety disorder. The examiner opined that the Veteran’s symptoms resulted in occupational and social impairment with reduced reliability and productivity. The examiner further added that based on his interview, that the Veteran’s level of anxiety had worsened since his last VA examination. She specifically noted that the Veteran reported difficulty coping with everyday work duties, which had resulted in a demotion. The examiner further noted that the Veteran was neatly groomed and dressed, speech was normal, and thought process was linear. Additionally, there was no indication that the Veteran had persistent delusions or hallucinations; engaged in grossly inappropriate behavior; was a persistent danger to himself or others; or had an intermittent inability to perform activities of daily living.
In July 2015, VA treatment records reflected that the Veteran experienced increased anxiety and sleep disturbances following the death of his brother. The Veteran was taken to the emergency room for prescription medication re-evaluation. Upon assessment at the emergency room, it was determined that there was no need for hospital admission, and the Veteran was given anxiety medication and scheduled for follow-up mental health care. It was further noted that the Veteran evidenced no factors suggesting increased risk for suicide or homicide.
VA treatment records from January 2014 to July 2015 generally reported that the Veteran experienced anxiety, stress, dysthymia, loneliness, social isolation, low self-esteem, poor interpersonal relationships, “feeling trapped,” and trouble sleeping. Of further note, these records contain reports of incidents where the Veteran experienced a worsening of his symptoms in the winter of 2014, to include having panic attacks, and that one day he felt suicidal. He had gun and bullets at home and threw the bullets into a pond. Otherwise, these records consistently reported that the Veteran was alert and oriented, well dressed and groomed, well-related, and had coherent and goal-directed thought process. Additionally, there were no reports of auditory or visual hallucinations. There were no reports of suicidal or homicidal ideations, and generally speaking the Veteran firmly denied suicidality.
An August 2015 VA psychiatric emergency department note provided that the Veteran reported a chief complaint an anxiety attack that day. It was noted that the Veteran was alert and oriented; cooperative; had good behavioral control; normal speech; logical and goal-directed thought; denied paranoia or delusions; denied auditory or visual hallucinations; and denied suicidal and homicidal ideations. It was noted that the Veteran had no thought or cognitive process disorder. The assessment given was anxiety due to alcohol withdrawal. It was noted that the Veteran did not give an indication that he was a danger to himself or others, and therefore it was deemed hospital admission was not required. The plan of treatment was follow-up mental health care.
A March 2016 VA psychiatric emergency department note provided that the Veteran reported to the emergency room due to having an anxiety attack while at work. The note provided that the Veteran was an alcoholic and had been on a “bad bender.” The Veteran reported experiencing similar episodes during alcohol withdrawal in the past. The treatment plan was to admit the Veteran for alcohol detox.
An April 2016 VA nursing mental health progress note reported that the Veteran stated his “anxiety seems to have subsided.”
VA treatment records from March 2016 to December 2016 demonstrated that the Veteran was alert and oriented; well dressed and groomed; well-related; thought content free of paranoia or delusions; thought process was coherent and goal-directed; and absence for auditory and visual hallucinations; and denied suicidal or homicidal ideations.
The Board finds that a rating in excess of 70 percent for the Veteran’s anxiety disorder from December 16, 2013 to March 13, 2017 is not warranted. VA treatment records for this period demonstrated that the Veteran’s symptoms increased in severity following the death of his brother. The evidence further showed that the Veteran continued to receive ongoing mental health treatment for anxiety and at times reported a decrease in the severity of his anxiety symptoms. Notably, later exacerbations of his symptoms correlated with instances of alcohol withdrawal, which were clearly documented by his symptom reporting to treating providers. Moreover, the medical evidence demonstrated that the Veteran was admitted for alcohol detox programs and not in-patient psychiatric treatment. 
The evidence from this period does not support manifestations of symptoms reflective of total occupational and social functioning.  The Board acknowledges the incident in the winter of 2014 where the Veteran threw bullets into a pond; however, such behavior was an isolated incident as there is no suggestion of continuation of such behavior with severity, frequency, or duration to enable the Board to award a 100 percent rating. See 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 118.  
In sum, the symptoms reported during this period are indicative of total occupational and social impairment as is required for the next higher rating of 100 percent. Bowling v. Principi, 15 Vet. App. 1, 11 (2001); Vazquez-Claudio, 713 F. 3d 112. Rather, the evidence reflects that the Veteran maintained some degree of functioning, as documented in the thorough evaluations from this period.  The Veteran retained some degree of ability in both spheres and the Board cannot find that his level of functioning prior to March 14, 2017 more nearly approximated the criteria for a total rating.  Thus, the Board finds that the symptoms shown do not support the assignment of a 100 percent rating from December 16, 2013 to March 13, 2017.
Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 70 percent at any time during December 16, 2013 to March 13, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Implied Total Disability Individual Unemployability (TDIU) 
The Veteran contends in his substantive appeal for an increased rating for his service-connected anxiety disorder that he is “difficult to employ” and that his combined rating of 80 percent was not reflective of his total disability. 
The Board acknowledges that under Rice v. Shinseki where a claimant or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. 22 Vet. App. 447 (2009). A Rice TDIU claim is limited to whether the Veteran is unemployable due to the underlying service-connected disability on appeal. See id. at 454-455 (holding that when a request for TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability, it is not a separate claim for benefits, but rather is part of the adjudication of the claim for increased compensation for that underlying disability). However, the Board finds that TDIU has not been raised by the record.
Here, the Veteran maintained some form of employment up to January 2017. Thereafter, a March 2017 VA social work progress note provided that the Veteran reported that he lost his most recent job because he informed his employer about his need to attend AA meetings. The Veteran stated that it was his belief that his employment was terminated for this reason. 
Based on the evidence of record, to include the Veteran’s lay statements for purposes of treatment, the Board does not find that TDIU has been reasonably raised by the record as part and parcel of the increased rating claim for anxiety disorder up to March 14, 2017 (at which point the Veteran was awarded a maximum 100 percent rating for anxiety disorder). VA treatment records reflect that the Veteran has alcohol dependence–a condition for which he is not service-connected for. The Board does not find that the Veteran’s alcohol dependency issues were intertwined with his service-connected anxiety disorder based on the medical treatment records prior to March 14, 2017. Compare April 2017 VA Examination with July 2015 VA Examination. 
 
Although the Veteran reported during his July 2015 VA examination that he was demoted, this is not evidence that he was unemployable.  The rating assigned under the schedular criteria are recognition of the impact of the disability on industrial capacity.  As a result, the Board finds that no TDIU has been raised by the underlying increased rating claim for service-connected anxiety disorder for the period that the rating was less than total.
 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Dellarco, Associate Counsel

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