Case A26039952

M. C. GRAHAM · 2026 · Case ID: A26039952

GRANTED

Summary

The Veteran, a Veteran who served from January 2003 to January 2005, appealed the denial of service connection for left knee conditions and sought an increased rating for unspecified anxiety disorder. The Veteran withdrew the appeals concerning the left knee conditions during a Board hearing, leading to their dismissal. For the unspecified anxiety disorder, the Veteran claimed a compensable rating was warranted. The Board reviewed evidence including a December 2020 private mental health evaluation, a January 2021 VA examination, and the Veteran's testimony. The private evaluation noted significant occupational and social impairment, including suicidal ideation and difficulty with relationships, while the VA examination found symptoms not severe enough to interfere with functioning. The Board found the private evaluation more probative due to its thoroughness and consideration of lay statements, and also found the Veteran's statements of continuity of symptomatology credible. The Board determined that the Veteran's symptoms, including suicidal ideation, more closely approximated the criteria for a 70 percent rating, but not a 100 percent rating, due to a lack of total occupational and social impairment. Service connection for the left forearm disability was granted, with the Board finding the Veteran's persistent symptoms and private medical opinions more persuasive than the VA's negative nexus opinions. The Board found the Veteran's left forearm disability etiologically related to an in-service injury where his arm was pinned between two Humvees.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210824-181872

Full Decision Text

Citation Nr: A26039952
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210824-181872
DATE: April 29, 2026

ORDER

Entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension) is dismissed.

Entitlement to an initial rating in excess of 10 percent for left knee instability is dismissed.

Entitlement to service connection for a left forearm disability is granted.

Entitlement to an initial 70 percent rating for unspecified anxiety disorder is granted.

FINDINGS OF FACT

1. During the February 2025 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified, in conjunction with his attorney representative, that a withdrawal of the appeals as to any claims regarding (a) entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension) and for (b) entitlement to an initial rating in excess of 10 percent for left knee instability were requested.

2. The Veteran's diagnosed left medical epicondylitis and bicep tendonitis, claimed as a left forearm disability, is at least as likely as not etiologically related to his active military service.

3. Throughout the period on appeal, the Veteran's unspecified anxiety disorder was shown to have manifested in occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood); the Veteran's unspecified anxiety disorder did not manifest in total occupational and social impairment at any time during the appeal period.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the Veteran, in conjunction with his attorney representative, as to the appeal for entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of an appeal by the Veteran, in conjunction with his attorney representative, as to the appeal for entitlement to an initial rating in excess of 10 percent for left knee instability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for service connection for left medical epicondylitis and bicep tendonitis, claimed as a left forearm disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for a 70 percent initial rating, but no higher, for an unspecified anxiety disorder, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 2003 to January 2005. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country.

The rating decisions on appeal were issued in June 2021 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 3, 2025. The Veteran, through their representative, clarified at their hearing that they had only appealed the ratings assigned to their left knee, not the effective dates assigned. See BVA Hearing Transcript (T.) at 2.

Therefore, the Board may only consider the evidence of record at the time of the respective June 2021 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a),
VA Hearing Transcript (T.) at 2.

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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Withdrawal

1. Entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension).

2. Entitlement to an initial rating in excess of 10 percent for left knee instability.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

During the February 2025 Board hearing, the Veteran, in conjunction with his attorney representative, withdrew the appeals for (a) entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension) and for (b) entitlement to an initial rating in excess of 10 percent for left knee instability. The withdrawn issues were clearly identified, and the Veteran affirmed that he was requesting a withdrawal as to these issues and that he had discussed this withdrawal with his attorney representative. The Veteran expressed understanding of the consequences of a withdrawal as explained by the VLJ. See BVA Hearing T. at 2.

Specifically, the VLJ explained that the Board would not adjudicate these claims on the merits, and he could refile his claims in the future, if he wished to do so, but as a consequence, any future grant of benefits would likely be no earlier than the date of a future claim for benefits for such disabilities. See BVA Hearing T. at 2.

As such, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeals as to these issues. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).

As the transcript of the hearing has been reduced to writing, the withdrawal during the hearing constitutes a written withdrawal as to these issues. See Tomlin v. Brown, 5 Vet. App. 355 (1993) (a statement made during a personal hearing, when later reduced to writing in a transcript, constitutes a written notice of disagreement within the meaning of 38 U.S.C. § 7105).

Hence, there remain no allegations of errors of fact or law for appellate consideration as to the issues of (a) entitlement to an initial rating in excess of 10 percent for left knee residual ACL tear with degenerative meniscus status post ACL repair (limitation of extension) and for (b) entitlement to an initial rating in excess of 10 percent for left knee instability, and they are dismissed.

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-
for (b) entitlement to an initial rating in excess of 10 percent for left knee instability, and they are dismissed.

Service Connection

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. §3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d).

Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

3. Entitlement to service connection for a left forearm disability.

The Veteran asserts that he has a left forearm disability related to an in-service injury. See December 2020 Statement.

The first Shedden element of entitlement to service connection is satisfied by a binding AOJ favorable finding in this case. The June 2021 rating decision on appeal noted the favorable finding of a current diagnosis of left medial epicondylitis and bicep tendonitis. See January 2021 VA examination.

The second Shedden element of entitlement to service connection is also reasonably satisfied in this case. The June 2021 rating decision on appeal noted the favorable finding of a qualifying event, injury, or disease had its onset during service. The rating decision additionally noted that your service treatment records indicate complaints of left forearm pain. A review of the Veteran's service treatment records reflect that he sought treatment in September 2003 for pain in his forearm of two and a half weeks duration. It was noted that his forearm had been bumped by a Humvee. He was diagnosed with tendonitis vs. compartment syndrome. A separation examination is not of record.

In a December 2020 statement, the Veteran reported that in August 2003, his left arm became pinned between two Humvees. He stated that he was eventually treated in September 2003 because his arm was still sore and simple tasks had been made challenging by his injury. He reported that the pain and discomfort lasted throughout military service and have continued, while also increasing, ever since.

In a December 2020 statement, the Veteran's wife noted that she had known the Veteran for twenty one years. She stated that prior to his enlistment he had been a healthy young man. She noted that after his discharge he was treated for strong pains in his left forearm. She stated that these pains limit his physical abilities to lift or carry heavy things without excruciating pain. She stated that after years of seeking medical help, completing physical therapies and using a brace he continues to share that he experiences sharp pain in his forearm that continues today.

The Veteran testified at his February 2025 Board hearing that he had received treatment for his left arm since service but was unable to obtain some of the treatment records due to offices closing down or moving. See Board Hearing T. at 5. He testified that ever since his injury in service, where his arm was pinned between two Humvees, he has had persistent symptoms. See Board Hearing T. at 8.
in his left forearm. She stated that these pains limit his physical abilities to lift or carry heavy things without excruciating pain. She stated that after years of seeking medical help, completing physical therapies and using a brace he continues to share that he experiences sharp pain in his forearm that continues today.

Post-service treatment records reflect that the Veteran continues to be treated for left arm and elbow issues. See September 2015, October 2015, January 2020, April 2020, May 2020, December 2020 private treatment records.

The Board will next address the third Shedden element of entitlement to service connection, specifically an etiological link between the current left forearm disability and the in-service injury event.

The Veteran underwent a January 2021 elbow and forearm conditions VA examination. He was diagnosed with left medial epicondylitis and left biceps tendinitis. The examiner opined that the claimed disability was less likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that because post-discharge medical records identify no confirmed diagnosis treatment or medications for 12 years, the claimed condition is less likely than not incurred in or caused by the forearm strain during service. In an April 2021 VA medical opinion, another examiner again provided a negative nexus opinion stating that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner rationalized that during service the left elbow/forearm pain/medial epicondylitis was acute only. There is no evidence of chronicity of care and symptoms. Medical records are silent regarding chronicity or care after separation from service. A nexus has not been established. The Veteran underwent an additional May 2021 elbow and forearm conditions VA examination. He was diagnosed with left medial epicondylitis and left tendinitis; an additional VA opinion was not obtained.

The Board finds that the VA medical opinions from January and April 2021 are inadequate because it appears that the examiners did not consider the Veteran's lay statements regarding continuity of his left forearm symptomatology. The Veteran has credibly testified about his continued symptomatology. His statements has remained consistent over the years and supported by statements from his wife. VA medical opinions must be based on an accurate medical history, Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), and a medical opinion that fails to consider a veteran's credible lay statements and solely relies on the absence of contemporaneous medical evidence to conclude that there is no link between a veteran's in-service injury and current disability is inadequate, McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). These medical opinions are accorded little probative value.

Prior to the decision on appeal, the Veteran additionally submitted a December 2020 private evaluation. The board certified physician assistant noted that she had reviewed the Veteran's service records, VA records and private medical records. She stated that his pain began on active duty in 2003 and he currently experiences daily pain, flares of sharp pain, stiffness, limitations in range of motion and difficulty gripping items. She discussed several medical literature articles.

She concluded her report noting that after review of the medical records and current literature, it was her professional opinion that it is more likely than not that the Veteran's chronic elbow pain, medial epicondylitis, and tendonitis were caused by service. She noted that he began experiencing the pain in service in 2003 that persisted despite proper treatment. The private examiner stated that this overuse disorder can lead to chronic pain as evidenced in the literature by causing fibrosis and tendonitis from repetitive use. She noted that the Veteran did not suffer from this pain prior to service and has required ongoing care from an orthopedic specialist. He has attempted multiple treatment modalities without success.

Within 90 days of the Veteran's Board hearing, he submitted a copy of an October 2021 statement from the same private examiner. In her addendum, she again noted that she had reviewed all the Veteran's records. With respect to a gap of time between service and when his records show post-service treatment for
the pain in service in 2003 that persisted despite proper treatment. The private examiner stated that this overuse disorder can lead to chronic pain as evidenced in the literature by causing fibrosis and tendonitis from repetitive use. She noted that the Veteran did not suffer from this pain prior to service and has required ongoing care from an orthopedic specialist. He has attempted multiple treatment modalities without success.

As noted above, the Veteran's service treatment records reflect treatment and complaints of left arm issues. Moreover, the Board finds the December 2020, with October 2021 addendum, private medical opinions highly probative in supporting the Veteran's claim. Moreover, the Board finds the Veteran's statements of continuity of symptomatology since service to be credible.

The Board finds that there is adequate supportive evidence that, with reasonable doubt resolved in the Veteran's favor, indicates that the Veteran's left forearm disability is etiologically related to his service.

Accordingly, service connection for the Veteran's left forearm disability is warranted. The appeal is granted.

Increased Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007).

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is evenly balanced, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

4. Entitlement to an initial compensable rating for unspecified anxiety disorder (claimed as mood disorder).

The Veteran asserts that a compensable rating is warranted for his service-connected unspecified anxiety disorder. After a review of the evidence, the Board agrees.

Under the General Formula for Mental Disorders (General 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).

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety,
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).

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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).

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned 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 personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. To deny a claim, the evidence must clearly weigh against the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

In rating disabilities, VA should not differentiate symptomatology attributed to nonservice-connected disability from symptomatology attributed to service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. 38 U.S.C. § 5107; 38 C.F.R. § 4.3.

Here, the decision on appeal was issued in June 2021, and the evidence considered was through this decision and also any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. Thus, the appeal period for consideration is from his claim for service connection filed on January 24, 2021 to the June 2021 rating decision.

As an initial matter, the Board recognizes that the appeal period ended in June 2021. The Board notes that the Veteran testified at his February 2025 Board hearing regarding his psychiatric symptoms during the appeal period. While some of the testimony clearly related to contemporaneous symptoms, there are other indications that the description of the Veteran's symptoms and treatment were not purely contemporaneous. The Board has considered all the testimony but finds that testimony related to symptoms four years after the appeal period ended has limited probative value with respect to
hearing or within 90 days following the hearing. Thus, the appeal period for consideration is from his claim for service connection filed on January 24, 2021 to the June 2021 rating decision.

As an initial matter, the Board recognizes that the appeal period ended in June 2021. The Board notes that the Veteran testified at his February 2025 Board hearing regarding his psychiatric symptoms during the appeal period. While some of the testimony clearly related to contemporaneous symptoms, there are other indications that the description of the Veteran's symptoms and treatment were not purely contemporaneous. The Board has considered all the testimony but finds that testimony related to symptoms four years after the appeal period ended has limited probative value with respect to the severity of his psychiatric symptomatology during the relevant appeal period.

Prior to the decision on appeal, in March 2021, the Veteran submitted a December 2020 private mental health evaluation. The examiner stated that the Veteran's occupational and social impairment with regards to all mental diagnoses was occupational and social impairment with deficiencies in most areas (work, school, family relations, judgement, thinking and/or mood). The examiner noted that post- military the Veteran has lost pleasure and interest in previously favored activities, become more isolative from others especially at work, has difficulty relating to most other people, has a dislike of being around large groups of people, interpersonal interactions marked by discomfort and anxiety, before and after they occur, problems trusting most people outside his family and a general preference for social isolation at home with only his family. It was noted that due to his symptoms he has been granted FMLA catastrophic leave multiple times and still sometimes misses work. It was noted that the Veteran had never received any mental health services via therapy or medication, though he has followed up with medical treatments for injuries and was involved in marriage counseling about seven years prior. Symptoms were noted to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting, suicidal ideation, obsessional rituals which interfere with routine activities, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. An evaluation at that time noted that the Veteran was oriented in all spheres, his speech was normal, affect was flat, mood was more nervous than he used to be. His insight and judgment seemed good. Passive suicidal ideation was noted.

In a March 2021 statement, the Veteran reported that he suffers from sleep interruptions, sweating due to stress and becomes quickly irate at very minor issues. The Veteran reported that he avoids parking near other cars and has left events due to stress and anxiety. He reported feeling trapped in his thoughts. He reported being less likely to volunteer, join in, or sign up for activities due to his condition. He reported that his relationships with some family members are now non-existent and he avoids interactions with coworkers unless necessary. During work breaks he looks for a dark corner, between rows of lockers, so that he can sit and be alone.

A May 2021 VA examination was completed. The Veteran was diagnosed with an unspecified anxiety disorder. The exam was completed through a video telehealth appointment. The examiner stated that the Veteran's psychiatric disability results in symptoms that are not severe enough to interfere with occupational and social functioning or require continuous medication. Symptoms were noted to include anxiety. The examiner stated that the Veteran was well groomed and cooperative, alert, and fully oriented. His speech was normal in rate, tone and syntax. His thought content and process were unremarkable. His mood presented as euthymic. The Veteran denied a history of suicidal or homicidal ideation.

Within 90 days of the Veteran's Board hearing, he submitted a January 2021 private treatment record which noted an interpretation of an evaluation completed, noting that there was suicide potential and this should be investigated further. Also submitted was a January 2021 psychiatric diagnostic evaluation. The Veteran presented with complaints of irritability, anxiety and depression. It was noted that the Veteran was experiencing angry outbursts, anxiety and worry, complaints of pain in his leg and a depressed mood. An evaluation at that time revealed that he was oriented in all spheres, appeared hypervigilant, and his affect was constricted. His mood was described as depressed. He was noted to present himself in an appropriate fashion. His speech was logical and coherent. His recent and remote memory were described as normal. The Veteran denied hallucinations. His judgment and impulse control were described as good.

Also submitted within the 90 day evidence window following his Board hearing were treatment records dated several years following the rating decision on appeal.
complaints of irritability, anxiety and depression. It was noted that the Veteran was experiencing angry outbursts, anxiety and worry, complaints of pain in his leg and a depressed mood. An evaluation at that time revealed that he was oriented in all spheres, appeared hypervigilant, and his affect was constricted. His mood was described as depressed. He was noted to present himself in an appropriate fashion. His speech was logical and coherent. His recent and remote memory were described as normal. The Veteran denied hallucinations. His judgment and impulse control were described as good.

Also submitted within the 90 day evidence window following his Board hearing were treatment records dated several years following the rating decision on appeal. The Board has considered this evidence. These records have little to no probative value as to the severity of the Veteran's psychiatric functioning during the appeal period. See for example September 2024 VA treatment record and March 2025 private mental evaluation.

The Veteran testified at his Board hearing that the VA examination of record was completed in five minutes. See Board Hearing T. at 11. In contrast, he testified that the private evaluation was very thorough and he spent a considerable amount of time discussing his symptoms with that practitioner.

Throughout the appeal period, prior to the June 2021 rating decision, the Veteran's unspecified anxiety disorder, has been rated as noncompensable, under Diagnostic Code 9413. 38 C.F.R. § 4.130, Diagnostic Code 9413.

After careful review of the evidence, the Board finds the Veteran's psychiatric symptoms noted above, more closely approximate the symptoms associated with a 70 percent rating, resulting in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating during the appeal period. The evidence at the time of the rating decision on appeal clearly showed suicidal ideation and other symptomatology consistent with a 70 percent rating. However, the Veteran's symptoms and level of impairment did not more closely approximate a 100 percent rating.

As detailed above, the December 2020 private examiner's findings, in conjunction with the Veteran's credible statements regarding his symptoms during the appeal period, reflect symptomatology associated with a 70 percent rating such as suicidal ideation; obsessional rituals which interfere with routine activities difficulty in adapting to stressful circumstances (including work or a worklike setting) and neglect of personal appearance and hygiene. The Board finds the December 2020 clinician's opinion of great probative value, as it is supported by a rationale based on an interview and review of the record and shows consideration of the lay statements. Moreover, the May 2021 VA examination completed at that time is accorded less probative value as the symptomatology noted on examination at that time, is not consistent with outpatient treatment records during that time period. Thus, for these reasons, the Board finds entitlement to a 70 percent evaluation for the Veteran's psychiatric symptomology is warranted.

Although a 70 percent rating is warranted for the Veteran's service-connected psychiatric disability, an even higher 100 percent rating is not warranted. The evidence during the appeal period shows that the Veteran's psychiatric disability was manifested by symptoms associated with a 70 percent rating, or lesser ratings, including depressed mood, anxiety, and chronic sleep impairment.

The evidence has not shown that the Veteran's service-connected psychiatric disorder resulted in total occupational and social impairment at any point during the rating period. In this regard, symptoms productive of, or similar to, gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment were not demonstrated.

The Board notes that the Veteran expressed suicidal ideation, consistent with a 70 percent rating criteria, but not persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. The evidence as described above, is persuasively against finding the severity, frequency, and duration of the Veteran's suicidal thoughts has risen to the level contemplated by the 100 percent disability rating.

Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, for example the December 2020 private examiner marked that the Veteran had intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the Board finds that the Veteran's unspecified anxiety disorder was not productive of total occupational and social impairment during the appeal period. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334
the severity, frequency, and duration of the Veteran's suicidal thoughts has risen to the level contemplated by the 100 percent disability rating.

Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or symptoms of similar severity may be shown or argued, for example the December 2020 private examiner marked that the Veteran had intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), the Board finds that the Veteran's unspecified anxiety disorder was not productive of total occupational and social impairment during the appeal period. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned).

The Board acknowledges that there is evidence of social impairment; however, the evidence does not persuasively show that such impairment is total. In this regard, the evidence shows that during the appeal period the Veteran still had familiar relationships. Thus, while the Veteran may have had some degree of social impairment, it cannot be said that he had total social impairment, particularly given his ability to maintain relationships with his close family. As to occupational impairment, the examiner noted that the Veteran was still working during the appeal period.

Additionally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with his respect to his psychiatric disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Accordingly, for the reasons and bases discussed, the evidence persuasively reflects, a rating of 70 percent, but no higher, for unspecified anxiety disorder is warranted. However, the evidence is persuasively against a rating higher than 70 percent. As there is not an approximate balance of positive and negative evidence, to warrant a schedular rating in excess of 70 percent, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. M. Clark, 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.

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