Citation Nr: 1753567 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-05 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for a psychiatric disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M.C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before a decision review officer (DRO) at a September 2015 hearing. A transcript of the hearing is of record. FINDING OF FACT For the entire appeal period, the Veteran's service-connected psychiatric disability has been characterized by occupational and social impairment with reduced reliability and productivity; but not by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an evaluation of 50 percent, but no higher, for psychiatric disability have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9410 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and a duty to assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103(a) (West 2014); 38 C.F.R. §§ 3.159(b) and (c) (2017). The duty to notify has been met in this appeal. See July 2011 VCAA correspondence. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran..." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. VA also has a duty to assist a veteran in the development of claims. That duty includes assisting a veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. The RO obtained the Veteran's service treatment and VA treatment records. The Veteran also submitted lay statements in support of his appeal. VA psychiatric examinations were conducted in August 2011 and September 2015. The VA examiners rendered appropriate diagnoses and evaluations consistent with the evidence of record, and provided sufficient information to evaluate the severity of the Veteran's disability under the applicable rating criteria. The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. In sum, VA satisfied its duties to notify and assist. No prejudice has been alleged or shown due to any possible defects, as any errors were not harmful to the essential fairness of the proceedings, and no further development would be reasonably likely to aid in substantiating the claim. The Veteran has had ample opportunity to participate in the adjudication, and the Board may issue a decision on the merits. II. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Pursuant to the rating criteria for mental disorders, the Veteran's service-connected psychiatric disability is rated at 30 percent disabling. A 30 percent 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). 38 C.F.R. §4.130, Diagnostic Code 9410. A 50 percent rating is warranted when a psychiatric disability is productive of 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; and difficulty in establishing and maintaining effective work and social relationships. Id. The next higher disability rating of 70 percent is warranted when 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. Id. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the 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. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9410. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Prior to its recent revision, VA had adopted and employed the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. Under that previous standard, diagnoses many times included an Axis V diagnosis, a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. A GAF score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. A GAF score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF score of 41 to 50 indicates that the examinee has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background A March 2011 VA psychology note indicated that the Veteran outlined his goals to decrease his anxiety, social isolation, feelings of hopelessness, depression and alcohol use. No disturbances of thought, repetitive activities, judgment, hallucinations or abnormal speech were noted. The Veteran denied current homicidal or suicidal ideations. At a July 2011 Vet Center intake assessment, the VA counselor indicated that the Veteran was neatly dressed, properly oriented to time and place, and his affect was appropriate. The Veteran reported experiencing some insomnia and drinking 6 to 9 beers daily. He denied homicidal or suicidal ideations, or any delusions, or hallucinations. During an August 2011 VA examination, the Veteran denied having flashbacks, anger, irritability, aggressiveness, suspiciousness, delusions, hallucinations or obsessive rituals. The Veteran reported that his symptoms included: nightmares (though he cannot remember what they are about), sleep disturbance (waking 4 or 5 times a night), being easily startled, and panic attacks triggered by situations that brought back thoughts of being in an airplane. He also indicated that he does not like crowds or closed spaces. He denied any homicidal or suicidal ideations. The Veteran reported having a good relationship with his wife of over 30 years. The VA examiner noted that the Veteran had moderate to severe impairment interfering with socializing and day-to-day functioning. The VA examiner noted that the Veteran had no impairment of judgment or abstract thinking, and opined that the Veteran's panic disorder was severe and ongoing. The VA examiner also noted that the Veteran had worked at a responsible job for a number of years. A GAF score of 55 was assigned. In an August 2011 VA addendum opinion, the Veteran reported having weekly panic attacks. At an August 2011 VA couples counseling appointment, the Veteran and his spouse discussed concerns about the Veteran's alcohol use. The VA psychologist determined that the Veteran's memory was intact, there was no impairment of judgment and that the Veteran was able to maintain personal hygiene. The Veteran denied any homicidal or suicidal ideations. In an August 2011 statement from the Veteran's friend reported that she and the Veteran had been friends for over 30 years. She indicated that the Veteran had changed from being happy, social and active to being unsociable, with episodes of panic and anger. She noted that the Veteran was no longer interested in activities that involve social gatherings. She wrote that in her opinion as a registered nurse the Veteran showed signs and symptoms of depression and hopelessness. In an August 2011 statement, the Veteran's spouse reported that the Veteran had become inactive, unsocial, depressed, angry, and anxious. She indicated that the Veteran had obsessive compulsive, erratic and irrational behaviors, as well as nightmares, re-experiencing trauma, night sweats, and constant insomnia. She reported that the Veteran wakes up scared, sometimes screams out at night, and sometimes cries. She also reported that the Veteran has 'horrible' anxiety and panic attacks. She described that the Veteran sometimes pulled over the car before driving and panicked when he went into public places or closed spaces. She reported that the Veteran told her that he feels helpless, guilty, and detached from life. A September 2011 VA psychology note indicated that the Veteran's anxiety had increased. No disturbances of thought, repetitive activities, judgment, hallucinations or abnormal speech were noted. He denied current homicidal or suicidal ideations. A November 2011 VA psychology note indicated that the Veteran was having difficulty with poor appetite, lack of motivation, depression, trouble concentrating, and poor sleep. The Veteran reported passive suicidal ideation but denied intent or plans. He reported having positive social support from his wife and grandchildren and identified them as a reason for living. He also expressed concern that he could not stop drinking for longer than a few days at a time. The VA psychologist recommended that the Veteran begin attending Alcoholics Anonymous . No disturbances of thought, repetitive activities, impaired judgment, hallucinations or abnormal speech were noted. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 50 was assigned. During a December 2011 VA psychology session the Veteran reported an improvement in his anxiety but still had some depressive symptoms. He reported that he had been prescribed but had not yet taken an antidepressant. No disturbances of thought, repetitive activities, impaired judgment, hallucinations or delusions were noted. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 55 was assigned. A February 2012 VA psychology note indicated that the Veteran was having difficulty with irritability, lack of motivation, depression, trouble concentrating, and poor sleep. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 58 was assigned. A March 2012 VA psychology note indicated that the Veteran's symptoms included: depression, insomnia, low energy, poor appetite, trouble concentrating, and thoughts of being better off dead. He denied current homicidal or suicidal ideations as well as delusions, or hallucinations. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 58 was assigned. On the March 2012 Form 9, the Veteran reported that his symptoms included flattened affect; panic attacks (almost every day), difficulty in understanding complex commands; forgetting to complete tasks; disturbances of motivation and mood, and an inability to maintain social relationships. An April 2012 VA psychology note indicated that the Veteran continued to experience anxiety and depression. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 58 was assigned. A May 2012 VA psychology note indicated that the Veteran continued to experience high levels of anxiety and reported feeling anxious while in automated car washes, in elevators, while sitting in traffic or in church, going to the movies and driving long distances. The Veteran reported that his symptoms included: lack of interest, depression, low energy, and trouble concentrating. He denied homicidal or suicidal ideations as well as delusions, or hallucinations. The VA psychologist noted that the Veteran was a low risk for suicide. A GAF score of 58 was assigned. A June 2012 VA social work note revealed that the Veteran's panic symptoms included: shortness of breath, chest tightness, dizziness, and feeling like he might die. He reported that the symptoms were triggered by situations where he felt trapped. The Veteran reported some insomnia and denied homicidal or suicidal ideations as well as delusions, or hallucinations. A GAF score of 60 was assigned. A March 2013 VA social work note revealed that the Veteran reported an increase in panic attacks (daily), with symptoms of shortness of breath, dizziness, anxiousness, dread, impending doom, and an intense need to flee the situation. He also reported that his panic attacks caused a conflict at work (he was fired for walking away from his boss while having a panic attack). He explained his disability to his boss and he was given his job back. The Veteran reported that he returned to drinking 8 beers daily. The VA social worker noted that the Veteran's hygiene and grooming were fair and his speech was coherent and goal oriented. The Veteran denied homicidal or suicidal ideations as well as delusions, or hallucinations. A GAF score of 50 was assigned. In a March 2013 letter, the Veteran's friend wrote that he had been friends with the Veteran for 4 years and had witnessed the Veteran's forgetfulness, anxiety, anger, and rage. He also wrote that the Veteran was withdrawn from his friends and co-workers and suffered from anxiety and PTSD on a daily basis. An April 2013 VA mental health intake note records the Veteran's assertion that his psychiatric symptoms were stable and that he was primarily concerned about his anxiety and panic attacks. He also reported that most of his anxiety was work related for which he used alcohol to cope. No disturbances of thought, repetitive activities, judgment, hallucinations or delusions were noted. The Veteran denied homicidal or suicidal ideations. A GAF score of 55 was assigned. An April 2013 VA psychology note revealed that the Veteran's panic symptoms included: racing heartbeat, increased/more labored breathing, sweating, trembling, feeling of impending doom, nausea, fear of losing control/going crazy, chills, and chest pain. The Veteran denied homicidal or suicidal ideations as well as delusions, or hallucinations. In an April 2013 letter from a Human Resource manager, she explained that in December 2012 the Veteran was fired after he had walked away from the administrator while she was talking to him. She wrote that the Veteran explained that he had anxiety and he had walked away to get some air. In an April 2013 letter, the Veteran's friend/co-worker wrote that he had been friends with the Veteran since 2009 and had witnessed the Veteran being unable to catch his breath and having to leave the office and walk around outside. He wrote that the Veteran told him that he had anxiety and panic attacks and on several occasions called in sick because of these attacks. An August 2013 VA psychology note indicated that the Veteran denied homicidal or suicidal ideations as well as delusions, or hallucinations. VA psychology notes for October and November 2013 revealed that the Veteran reported disturbances in sleep, difficulty concentrating, irritability, low mood, and energy, lack of motivation, and avoidance. He also initially reported passive suicidal ideation but denied any intent or plan; thereafter he denied any disturbances of thought, homicidal, or suicidal ideations. He reported significant improvements in his mood, energy, and alcohol use. A February 2014 VA social work note revealed that the Veteran was having marital problems. He indicated that he struggled to go to work due to his anxiety. He also reported difficulty with his anger, sleep and concentration at work. He reported that he had suicidal thoughts but denied any plan or intent and denied homicidal ideation. The VA social worker noted that the Veteran did not display repetitious activities, had clear and steady speech, and was oriented. His memory and concentration were intact and there was no evidence of perceptual disturbance or delusions. A subsequent February 2014 VA social work note reported that the Veteran had suicidal thoughts but denied any plan or intent and denied homicidal ideation. No changes in the Veteran's condition were noted. A July 2014 VA physician note documented that the Veteran continued to use alcohol to deal with his anxiety. He denied having suicidal or homicidal ideations. According to a July 2014 VA physician note, the Veteran's spouse reported that the Veteran drank 7 to 10 beers daily. She also reported that he calls her from work or walks around the building to calm his anxiety. She indicated that the Veteran withdraws socially from others including his grandchildren. An August 2014 VA social work note documented that the Veteran complained of ongoing anxiety with panic symptoms, problems falling asleep, irritability towards others and daily alcohol abuse which he noted impacted his mood and behavior. He reported coping with problems at work by using alcohol and leaving his worksite to walk around. The VA social worker noted that the Veteran was groomed and casually dressed, his speech was goal oriented and his thought content was logical and appropriate. The Veteran denied having suicidal or homicidal ideations. A subsequent VA October 2014 social work note documented that the Veteran reported having angry verbal outbursts with his family and co-workers. He described an incident where he had a verbal outburst with a co-worker only to find that he had misunderstood what his co-worker had said. He also reported a verbal outburst at his son. The VA social worker noted that the Veteran's appearance and hygiene were appropriate. The Veteran denied having suicidal or homicidal ideations. A December 2014 VA social work note reported that the Veteran was groomed and casually dressed, his speech was goal oriented and his thought content was logical and appropriate. The Veteran denied having suicidal or homicidal ideations. In a January 2015 group therapy assessment, the VA social worker noted that the Veteran was groomed and casually dressed, he demonstrated adequate interpersonal skills, and his thought content was logical and appropriate. No abnormalities in motor skills or memory were noted. The Veteran's risk of suicide or homicide was determined to be low. During a September 2015 VA examination, the VA examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran's conditions were in the moderate to severe range and appeared to be worsening. The Veteran reported that he had been married for 36 years and his wife was his primary support system. The Veteran reported that he is close with his family (two adult children and 6 grandchildren) and indicated that having all of his grandchildren around can be stressful. The Veteran denied having any 'significant' friends and reported that he does not go out socially. The Veteran's occupational history included working 3 jobs post- military service, and he had been with his current employer for 5 years. He also reported that his current employer was aware of his anxiety and has been understanding of his needs. He also reported calling his wife from work to help ease his anxiety. The Veteran described feeling distressed in enclosed places, having nightmares about dangerous flight experiences, intense anxiety, panic attacks, and some hypervigilance in public. He indicated having infrequent thoughts of suicide but denied any plan or intent. The Veteran indicated having panic attacks a 'couple times a month' and daily anxiety. The VA examiner observed that the Veteran was casually dressed with good hygiene; his speech as normal, his mood and affect were anxious, and his psychomotor activity was within normal limits. During the September 2015 VA examination, the Veteran's spouse provided some additional information. She indicated that she was concerned about the Veteran's drinking. She also indicated that the Veteran was angry, depressed, and had become socially isolated. She reported that the Veteran calls her from work in a panic a few times a month. In September 2015 the Veteran and his spouse testified before a DRO. The Veteran reported having panic attacks a 'couple times' a week. He noted that he was not always sure what triggered his panic attacks. He reported that he had been fired because his boss thought he was disrespecting her, but when he explained about his panic/anxiety attacks he was allowed to return to work. The Veteran testified that his current boss and co-workers were aware of his disability and his current boss allows him to walk around the building or call his wife to help calm him down. The Veteran also testified that while at work he is responsible for 11 staff members and his relationship with them is honest and respectful; although sometimes they make him angry. He testified that he drank to at least 8 beers a day, to cope with his anxiety; and he normally drinks 2 beers before work (on one occasion he drank 5 beers). He testified that he does not socialize and would rather be alone. The Veteran's spouse testified that the Veteran's drinking and anger had worsened. She also reported that she feared the Veteran would be fired because he "has no filter with his staff, sometimes I feel like they're going to report him to human resources." The Veteran's spouse also noted that the Veteran did not socialize and did not want to be around people. Analysis A 50 percent rating is warranted for this service-connected psychiatric disability for the entire appeal period. The Board finds that the probative evidence reasonably and clearly shows that the Veteran experienced occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships due to service-connected psychiatric symptoms. Turning to whether a rating higher than 50 percent is warranted a 70 percent rating contemplates a situation in which there is an inability to establish and maintain effective relationships. The Board finds that the evidence from the period establishes that the Veteran has generally functioned adequately with regard to social functioning. Despite some recent marital difficulties, the Veteran has been married for over 35 years, and interacts with his 2 adult children and 6 grandchildren. Moreover despite suggesting he as no friends or at least substantial friendships, he has submitted several states from friends (some of whom are longstanding friends) who are clearly close enough to the Veteran to write on his behalf. In addition, despite a suggestion that he does not get along with coworkers, the records shows he is a supervisors with no suggestion of any adverse actions against him because of any employee problems. In short, the Veteran is clearly able to make and keep effective relationships. A 70 percent evaluation is warranted where there is occupational impairment with deficiencies in most areas. With regard to occupational functioning, the record shows that the Veteran has been able to maintain long term employment since leaving the military. Despite his wife's fears of him being fired or disciplined this has not happened except for one incident in which he walked away from a supervisor. Even then, he was quickly re-hired once he explained the reasons. He has not shown any evidence of employment difficulty since service. An October 2014 VA social work note documented that the Veteran reported having angry verbal outbursts with his co-workers. He described an incident where he had a verbal outburst with a co-worker only to find that he had misunderstood what his co-worker had said. Again, there is no evidence that this interfered with his occupational functioning. He indicated that he had been with his current employer for 5 years and that he has an honest and respectful relationship with staff he supervises. The weight of the evidence is against a finding that there are deficiencies in the area of work within the meaning of the criteria for assignment of a 70 percent rating. Additionally, the Veteran's symptoms during the period at issue have not consisted of impairments in judgment. Throughout the appeal period, the Veteran's judgment was intact and he was oriented. There is no evidence of impairment in reality testing or communication. His speech has been described as logical and goal directed and there have been no clinical reports of significant abnormal thinking. Mental status examinations have consistently shown that both the Veteran's judgment and thinking has been appropriate, logical and intact. Notably, at the August 2011 VA psychiatric examination, the VA examiner noted there was no impairment of judgment or abstract thinking. At the September 2015 VA psychiatric examination, the examiner noted that the Veteran's judgment was intact in most areas and was reduced regarding drinking alcohol. The weight of the evidence is against a finding that the Veteran has impairment in judgment within the meaning of the criteria for assignment of a 70 percent rating. The Veteran has not reported any impairment in judgment and the VA treating physicians have not noted any impairment in judgment, except in regard to his alcohol use. Thus, given that the Veteran's judgment and thinking has predominantly been found to be appropriate or intact, the Board finds that he does not have deficiencies in this area. Regarding underlying symptomatology that can be compatible with the assignment of a higher 70 percent rating, the Board notes that the Veteran is not shown to have obsessional rituals which interfere with routine activities. Although August 2011 the Veteran's spouse reported that the Veteran had obsessive compulsive, erratic and irrational behaviors, throughout the appeal period neither the Veteran nor his treating doctors describe any obsessional rituals or impaired impulse control. The Board accords greater probative weight to the observations of the Veteran's clinicians in this regard. Thus the weight of the evidence is against a finding that the Veteran had obsessional rituals which interfered with routine activities. Furthermore, during the appeal period the Veteran's symptomology did not include intermittently illogical, obscure or irrelevant, speech, auditory or visual hallucinations or delusions, spatial disorientation, or neglect of personal appearance and hygiene. His memory is consistently intact. The Veteran has occasionally expressed some suicidal ideation but has not made any attempts and has emphasized that positive social support from his wife and grandchildren are a reason for living. Throughout the appeal period he was noted to be a low suicidal risk by his treating doctors despite his reports of suicidal thoughts. At the September 2015 VA examination the Veteran reported suicidal thoughts without plans or intentions. Thus while the Veteran has had thoughts of suicide, he never indicated any intent or plan to carry out his thoughts. Furthermore, the Veteran was determined to be at low risk for suicide risk by VA treating doctors due to his social support of his family. (See November 2011, October 2013, and February 2014 treatment notes). Thus the Veteran's suicidal ideation has not been shown to cause deficiencies in most areas. The Veteran has shown some difficulty adapting to stressful circumstance and he has at times experienced panic attacks ranging from daily to weekly in occurrence. At the September 2015 VA examination the Veteran reported having panic attacks a couple times a month but at his September 2015 testimony he reported having panic attacks a "couple times a week." Although the Veteran sometimes has panic attacks as frequently as daily other times they are much more infrequent given this inconsistent range, the Board finds that his panic attacks are not near continuous in nature. Accordingly, the symptomatology is more compatible with the assignment of a 50 percent rating regarding the Veteran's panic symptoms. Moreover, even his suicidal ideation has been, at most, intermittent, with most of the clinical treatment records reporting the absence of suicidal ideation. Given the intermittent reporting of suicidal ideation, the consistent assessment of this suicide risk as low, and the consistent lack of any planning beyond the thought of suicide, the Board finds in this case that the Veteran's suicidal ideation is not of frequency and severity as contemplated for a 70 percent evaluation. The Board notes that in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court took issue with a Board decision which found that the suicidal ideation in that case was pervasive and chronic, but nevertheless did not support a 70 percent rating. Among the factors the Board considered in that case that the Court disapproved of was that the suicidal ideation was passive, and that the Veteran's suicide risk was low. The Court effectively determined that there was no distinction between passive and active suicidal ideations for the purposes of rating psychiatric disorders, and that considering the persistent risk of harm to self inappropriately conflated the criteria for 70 and 100 percent ratings. The instant case is distinguishable from Bankhead. In this case, the Board finds the suicidal ideation at issue is not even remotely pervasive, or even chronic. As already explained, the Veteran's reports of suicidal ideation are few and far between, and there are a plethora of references in the treatment notes to the Veteran's denial of any suicidal ideation. The Board also points out that the import of findings relating the lack of any planning in this case is not meant to suggest that only suicidal ideation with planning warrants a 70 percent rating; rather that Board's finding in this regard is for the purpose of evaluating the severity of the suicidal ideation. As the Court has acknowledged in other cases, and appeared to acknowledge in Bankhead, the determination of the rating to be assigned turns on the frequency and severity of the symptom or symptoms at issue, and not necessarily on the nature of the symptoms. Consequently, when looking at the Veteran's suicidal ideation, it is relevant that not only is the incidence of the symptom infrequent, but that when it is present, it is not to the point where it is impacting to a significant enough extent of the Veteran's functioning. The same is true with respect to the assessment of the Veteran's clinicians that his risk of harm is low. While that indeed also speaks to the criteria for a 100 percent rating, it happens to be relevant as to the more general matter of the severity of the suicidal ideation. Obviously suicidal ideation and risk of self-harm are related concepts. The mere fact that the criteria for 100 percent rating mentions a symptom that can bear relevance to another symptom mentioned in the criteria for a lower rating does not mean that the first symptom may not be considered with respect to a lower rating. In fact, the Court has acknowledged that the symptoms listed in the criteria for rating psychiatric disorder are mores of a guide for what types of symptoms are contemplated by the criteria for different rating levels. The Board in this case is not conflating the two rating criteria, bur rather is pointing out that in terms of the severity of the suicidal ideations, it is not even remotely to the point where the Veteran's own clinicians fell that measures need to be taken. The Board notes that the Court in Bankhead acknowledged that the Board is not "absolutely prohibited" form considering risk of self-harm in assessing his level of occupational and social impairment. In sum, the Board finds that the Veteran's suicidal ideations are not of the frequency or severity contemplated by the assignment of a 70 percent rating. The Board also finds that at those points where the Veteran expressed suicidal ideation, such ideation was not of the severity, given the Veteran's overall disability picture, to warrant a staged rating at any point. Nor is there evidence of near continuous depression of the type contemplated by a 70 percent evaluation. Despite some underlying depression, the Veteran clearly is able to operate independently and effectively, as evidence by his solid work history. The Board also notes that the GAF scores assigned during the appeal period have ranged from 50 to 60, generally indicative of moderate symptoms and compatible with assignment of a 50 percent rating and not a higher rating. At the most recent September 2015 VA psychiatric examination, the examiner found that the Veteran's symptomatology resulted in occupational and social impairment with reduced reliability and productivity. Throughout the appeal period the Veteran's disorder has been manifested by symptoms of anxiety, irritability, sleep impairment, depression, panic attacks, work related anxiety, and difficulty in adapting to stressful circumstances. VA treatment records primarily show symptomatology with congruent severity, frequency, and functional impairment as reported in the September 2015 VA examination report. As noted, the Veteran's symptoms as reported above are not consistent with 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, spatial disorientation, neglect of personal appearance, or other symptoms approximating such a level of disability. Therefore, the Veteran's symptoms do not equate in severity, frequency or duration to occupational and social impairment with deficiencies in most areas, such as family relations, mood, school, work, thinking or judgment. The Veteran did not exhibit severe symptoms such as those associated with an even higher 100 percent rating. The Veteran did not present an inability to maintain minimal personal hygiene. Also, he consistently denied hallucinations, and did not present with gross impairment in his thought processes, communication or behavior. As discussed above, he reported occasional suicidal thoughts; but his clinicians assessed his suicide risk as low which is inconsistent with being a danger to himself. He has remained alert, oriented, and exhibited normal mental status, judgment and thinking. Accordingly, the Board finds that a rating of 50 percent, but not higher for psychiatric disability is not warranted for the entire rating period on appeal. TDIU consideration Entitlement to a total rating for compensation based on individual unemployability (TDIU), potentially is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. As the record makes clear, the Veteran, despite the challenges posed by his disabilities, maintains full time employment, and there is no evidence that the employment is marginal. Consequently, further discussion of a total disability rating for individual unemployability is unnecessary. See Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (question of entitlement to TDIU does not arise unless there is evidence of unemployability). ORDER A 50 percent, but not higher, evaluation for psychiatric disability is granted subject to the regulations governing the payment of monetary awards. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs