Citation Nr: 18142388 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-38 530 DATE: October 15, 2018 ORDER Entitlement to an initial rating greater than 30 percent for a psychiatric disability is denied. FINDING OF FACT Throughout the pendency of this claim, the Veteran’s psychiatric disability has been manifested by symptoms of 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. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 30 percent for a psychiatric disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. In adjudicating a claim, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). With regard to claims for increased rating, staged ratings may be appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Sellers v. Principi, 372 F.3d 1318 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran’s psychiatric disability is currently assigned a 30 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9413, used for rating unspecified anxiety disorders. A 30 percent rating is warranted for a mental disorder when 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. A 50 percent rating is warranted for a mental disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short term 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. 38 C.F.R. § 4.130. A 70 percent rating 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 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, or 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The symptoms listed in the General Rating Formula are examples, not an exhaustive list and it is not required to find the presence of all, most, or even some of the enumerated symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran’s occupational and social impairment, rather than on the presence or absence of particular symptoms listed in the schedular criteria. Vazquez Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Entitlement to an initial rating in excess of 30 percent for a psychiatric disability. An August 2016 Board decision established service connection for a psychiatric disability, to include a speech fluency disability and anxiety disorder. An August 2016 rating decision assigned a 30 percent rating for a psychiatric disability, to include speech fluency disability, effective May 8, 2014. The Veteran has appealed the 30 percent rating initially assigned for a psychiatric disability. He contends that his psychiatric disability is worse than rated. In a December 2017 statement, the Veteran’s representative asserted that the May 2017 rating decision which continued the 30 percent rating did not consider the Veteran’s suicidal ideation. In a September 2014 VA examination report for mental disorders, the examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self care and conversation. The Veteran was divorced and lived with his girlfriend of about four years. The relationship was “okay.” He got along with his daughters. He maintained contact with his family of origin. He had several close friends, and enjoyed golfing and exercising. He worked as a postal carrier for several years until he was injured. He was working a little bit, delivering newspapers and helping his brother. He denied suicidal and homicidal ideation. For symptoms, the examiner noted difficulty in adapting to stressful circumstances, including work or a worklike setting. He was adequately groomed, alert, and well-oriented. Affect was somewhat tense. He had logical and coherent thought processes. His typical mood was described as “okay.” He denied depressed mood, feelings of hopelessness, and suicidal ideation, and did not report any panic symptoms. Energy level was good. He did not have difficulty falling or staying asleep. Memory and concentration were fair. According to a March 2017 VA psychiatric report, the Veteran reported that anxiety symptoms were worsening. However, the examiner found that the Veteran’s behavior was normal and without agitation and that his eye contact was appropriate. He was cooperative during the interview. Speech was generally fluent with very occasional halting speech. The Veteran reported that his mood was sometimes good and sometimes it was not. The examiner found no significant irritability during interview. The Veteran’s thought process was linear and thought content was devoid of psychotic symptoms. The Veteran denied suicidal or homicidal ideations. Based on a history of no attempted suicides, family support, future oriented thoughts, and no access to firearms, the examiner found the Veteran was at a low risk of suicide. According to a May 2017 VA examination report for mental disorders, the examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. At the examination, the Veteran appeared alert and oriented and had good eye contact. Grooming and dress were appropriate. There was no apparent distress. The Veteran was friendly, cooperative, and made a good effort. The examiner found the Veteran had good social skills, but that he had limited insight. The Veteran showed prominent stuttering. The examiner found the Veteran was prone to offering vague, ambivalent responses. The Veteran stated “I get moody sometimes. I get angry because I can’t let people know how I really feel.” Otherwise, the Veteran stated that he tended to feel “numb…I just don’t feel anything I guess.” The Veteran further clarified that he was generally in a good mood, but became frustrated when he had difficulty communicating with people. His affect was primarily serious, but at times smiled and laughed easily. He described his energy as “OK.” He indicated that usually he did not sleep very well, with a tendency to have problems with sleep onset and maintenance for at least five years. He stated that he became anxious and had racing thoughts when he tried to fall to sleep. He was a light sleeper. The Veteran reported good self esteem, but felt ambivalent about his future most of the time. He denied clinical symptoms of depression. He reported that he generally felt anxious and nervous, but denied panic attacks, manic symptoms, or obsessions/compulsions. The Veteran reported having adequate concentration and memory. He reported some occasional suicidal ideation. For example, he reported that in the previous year he thought of driving his car into a tree. However, the Veteran denied suicidal or homicidal ideations, or psychosis. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for a psychiatric disability during the period service connection has been established. The overall evidentiary record shows that the severity of the Veteran’s psychiatric disability most closely approximates the criteria for a 30 percent rating. The evidence shows that the Veteran has difficulty in adapting to a work like setting, difficulty in adapting to stressful circumstances, and difficulty in adapting to work. The Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although he is generally functioning satisfactorily, with routine behavior, self care, and normal conversation), and anxiety. The evidence does not show 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 term 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. Thus, the Veteran’s symptoms do not warrant a higher rating of 50 percent. The Board has evaluated the Veteran’s symptomatology and finds that occupational and social impairment with reduced reliability and productivity is not shown. The evidence also does not show symptoms such as suicidal ideations; 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, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, or neglect of personal appearance and hygiene. Thus, a 70 percent rating or higher is not warranted. Total occupation and social impairment is not shown due to the psychiatric disability. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent for a psychiatric disability and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.7. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel