Citation Nr: 18150770 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-35 100 DATE: November 15, 2018 ORDER Entitlement to an initial disability rating of 70 percent, but no more, for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and depressive disorder, is granted for the period from May 30, 2008 to November 3, 2014, and the period from January 1, 2015. FINDING OF FACT For the entire period of the appeal, the Veteran’s acquired psychiatric disorder was shown to be productive of a disability picture that equated to occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; intermittent visual and auditory hallucinations; difficulty in adapting to stressful circumstances, sleep disturbances; disturbances of motivation and mood; and difficulty in establishing and maintaining effective relationships. CONCLUSION OF LAW For the period from May 30, 2008 to November 3, 2014, and the period from January 1, 2015, the criteria for an initial disability rating of 70 percent, but no more, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.59, 4.130, Diagnostic Codes 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to September 1966. This matter was last before the Board in June 2017, whereupon entitlement to a 50 percent rating for the acquired psychiatric disorder was granted for the entire period of the appeal (not including the period of temporary total rating from November 3, 2014 to January 1, 2015). Upon the Veteran’s appeal of the issue, the United States Courts of Appeals for Veterans’ Claims (Court) in March 2018 granted a Joint Motion to vacate that portion of the June 2017 Board decision denying a rating in excess of 50 percent for the acquired psychiatric issue and remanded the matter back to the Board for readjudication of the denied increased rating claim. The Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge in June 2015; a copy of the transcript of that hearing is of record. The Board notes that the Veteran in an October 2018 correspondence asserted that they were entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), which holds that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. However, the issue of TDIU was remanded to the Regional Office (RO) in the Board’s prior June 2017 decision, and has yet to be fully adjudicated by the RO. This matter will thus presumably be addressed in a forthcoming decision. Entitlement to an increased initial rating for an acquired psychiatric disorder The Veteran seeks an initial rating in excess of 50 percent for his service-connected acquired psychiatric disorder for the entire period that it has been on appeal, irrespective of the period of time from November 3, 2014 to January 1, 2015 during which he was in receipt of a temporary total evaluation. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. See 38 C.F.R. §4.126. Service connection is in effect for an acquired psychiatric disorder, rated 50 percent disabling prior to November 3, 2014 and from January 1, 2015 under the General Rating Formula for Mental Disorders (although a June 2017 rating decision indicates a 30 percent evaluation as of January 1, 2015, in direct conflict with the Board’s June 2017 decision, which clearly indicates that a 50 percent evaluation was assigned during that period). 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) Upon review of the evidence, the Board finds that an initial rating of 70 percent, but no more, is warranted for the acquired psychiatric condition for the entire period of the appeal other than the period of time that the Veteran was granted a temporary total evaluation for the condition. VA treatment records and examinations reflect that the Veteran has a history of reportedly experiencing auditory and visual hallucinations. During the June 2015 hearing he stated that he considered suicide in the past but did not act on those thoughts, which accords with the July 2008 examination wherein he reported occasional vague suicidal ideation. The Veteran was admitted to the hospital in November 2014 for extreme anxiety, and the record reflects that he has consistently reported experiencing significant difficulty falling asleep and staying asleep as due to this anxiety. Furthermore, during the June 2015 hearing he asserted that he regularly experiences memory and concentration issues associated with his exhaustion due to being unable to sleep restfully at night. Finally, he has consistently reported having very little social interaction with other people, although he has maintained a decades-long marriage to his wife and regularly attends meetings at a local Veterans center. The Board also notes that an August 2018 vocational assessment reflects that the Veteran was fired in 2005 due to repeated complaints about his reduced productivity, which was associated with his poor sleeping habits and anxiety attacks attributed to the acquired psychiatric disorder. The Veteran has not worked full-time since 2005. Ultimately, the Board finds that the preponderance of the record reflects symptomatology commensurate with the 70 percent rating criteria. Although all three of the VA examiners who have evaluated the severity of the acquired psychiatric disorder found that the symptoms of the condition contributed to no more than moderate impairment in social and occupational functioning, the Board has highlighted above those symptoms inherent in the 70 percent rating that were seemingly overlooked by the VA examiners, to include suicidal ideation, hallucinations, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. Taken together with those symptoms already encompassed in the 50 percent rating, these newly recognized symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an evaluation of 70 percent. However, the Veteran’s symptomatology does not meet the criteria for a 100 percent rating at any time during the appeal period. While the evidence does show that the Veteran has reported experiencing visual and auditory hallucinations, there is no evidence that he has ever acted on those hallucinations or that they have resulted in spatial or temporal disorientation. Furthermore, the record does not show that he has exhibited the gross impairment in thought process or communication or grossly inappropriate behavior necessary for a 100 percent evaluation. Moreover, while the Veteran has reported experiencing memory issues during the various VA examinations as well as during the hearing, there is no suggestion that he experiences memory loss for his own name or names of close relatives. Most significantly, there is no indication that he experiences total occupational and social impairment as due to his service-connected acquired psychiatric disorder; rather, he has maintained a decades-long marriage with his wife. Accordingly, a 100 percent evaluation is not warranted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel