Citation Nr: 18155933 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-40 509 DATE: December 6, 2018 ORDER An increased initial disability rating of 50 percent, but no higher, for a psychiatric disability prior to January 30, 2013, is granted. An increased disability rating in excess of 50 percent for a psychiatric disability as of January 30, 2013, is denied. FINDINGS OF FACT 1. Prior to January 30, 2013, the competent and probative evidence is at least in equipoise as to whether the Veteran's psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity due to anxiety, sleep issues, memory problems, and difficulty maintaining effective relationships. 2. From January 30, 2013 forward, the weight of the competent and probative evidence shows psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 50 percent, but no higher, for a psychiatric disability from February 2, 2012 to January 30, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes (DCs) 9411, 9413, 9434. 2. The criteria for entitlement to an initial disability rating in excess of 50 percent for a psychiatric disability as of January 30, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DCs 9413, 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to February 1992. The Veteran also served in support of Operation Desert Storm from February 1991 to May 1991. This matter comes before the Board on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an increased rating for a psychiatric disability Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that "the presence of all, most, or even some, of the enumerated symptoms" is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, VA must engage in a thorough analysis of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, the criteria for a 30 percent rating are as follows: 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. The criteria for a 50 percent rating are as follows: 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. The criteria for a 70 percent rating are as follows: 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; obsessive 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); and an inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are as follows: 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; and memory loss for names of close relatives, own occupation, own name. Id. 1. Prior to January 30, 2013 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial disability rating of 50 percent, but no higher, for a psychiatric disability from February 2, 2012 to January 30, 2013, is warranted. The Veteran was provided with a VA examination in December 2012. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, and sleep impairment. The examiner also reported that the Veteran suffers from both occupational and social impairment with an occasional decease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner also remarked that the Veteran’s occupational functioning was impacted, in part, by interpersonal difficulties. The Board finds the examiner’s opinion to be competent, credible and probative of the Veteran’s psychological condition during the relevant time period. The examiner conducted an in-person examination, reviewed the claims file, and considered the lay statements of the Veteran regarding her condition. The Veteran’s experiencing of reduced occupational functioning as a result of interpersonal difficulties, along with the other reported symptoms, more closely approximates the criteria for a rating of 50 percent for the period from February 2, 2012 to January 30, 2013. Accordingly, the Board finds that competent and probative medical and lay evidence is at least in equipoise as to whether the Veteran's psychiatric symptoms resulted occupational and social impairment with reduced reliability and productivity due to anxiety, sleep issues, memory problems, and difficulty maintaining effective relationships from February 2, 2012 to January 30, 2013. Specifically, the Board finds that the exhibited symptoms of depressed mood, anxiety, suspiciousness, and sleep impairment, along with reduced occupational functioning because of interpersonal difficulties, support the finding of a higher rating. This symptomatology more nearly approximates the level of social and occupational impairment contemplated by the 50 percent rating. The Board engaged in a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran's psychiatric disability, but finds that her mental health symptoms do not more nearly approximate a 70 percent rating from February 2, 2012 to January 30, 2013. In fact, the Veteran's symptoms of depressed mood, anxiety, suspiciousness, and sleep impairment, along with reduced occupational functioning because of interpersonal difficulties, are specifically contemplated under the rating criteria for a 50 percent evaluation. See 38 C.F.R. § 4.130. During this time period, the Veteran endorsed experiencing symptoms of anxiety daily. This endorsement more closely approximates the rating evaluation of 50 percent than 70 percent. The 70 percent criteria reference experiencing near-continuous panic or depression that impacts one’s ability to function independently. The 50 percent criteria include experiencing panic attacks more than once a week. In this case, the Veteran’s statements regarding experiencing symptoms of anxiety daily do not support a finding that such symptoms constitute a near-continuous panic that prevents the Veteran from functioning independently. The record contains no such evidence and the Veteran reports to live independently without the need to rely upon someone else on the basis of experiencing near-continuous panic. The Veteran also endorses the symptom of irritability. Despite experiencing irritability, the record contains no indication that the irritability results in periods of violence or causes the Veteran to be in persistent danger of hurting herself or others. The Veteran’s irritability and its frequency and severity can be more closely approximated to the criteria for 50 percent, that includes disturbances of motivation and mood, rather than the symptoms provided under either the 70 percent or the 100 percent criteria which both include references to violence. The Veteran also endorses feelings and symptoms related to suspiciousness. This symptom most closely approximates the 50 percent criteria which includes disturbances of motivation and mood. The record does not indicate that the Veteran’s feelings of suspiciousness rise to the more severe level of obsessional rituals that interfere with routine activities, as described in the 70 percent criteria, or persistent delusions or hallucinations, as described in the 100 percent criteria. Indeed, the record indicates that the Veteran is still able to go in public and carry on a normal routine despite feelings of suspiciousness. During the December 2012 VA examination, the Veteran provided information regarding her personal relationships and hobbies. The Veteran reported having three marriages and divorces since leaving the military. The Veteran also reported having a good relationship with her oldest son, being in contact with her mother, but distant from siblings. The 2012 examination also includes information regarding the Veteran’s friendships. The Veteran regularly attends church, three times a week, and through Church she has met a group of women that she considers friends. The Veteran also indicated having a male friend that lives with her. The Board finds that the Veteran’s ability to engage in regular Church attendance and friendships more closely approximates the 50 percent criteria, rather than the higher level of social impairment captured by either the 70 or 100 percent criteria. The Veteran’s statements regarding her symptoms are competent, credible, and probative in this case. These statements were provided during the course of an examination regarding her psychological condition and appear consistent throughout the record. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). All possible applicable diagnostic codes have been considered, but the Veteran could not receive a higher or separate rating for a psychiatric disability from February 2, 2012 to January 30, 2013. See 38 C.F.R. § 4.130. Based on the foregoing, the evidence shows symptomatology more nearly approximated by those contemplated by the 50 percent criteria prior to January 30, 2013. 2. As of January 30, 2013 After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that an initial disability rating in excess of 50 percent for a psychiatric disability as of January 30, 2013, is not warranted. The Veteran was provided an additional VA examination in October 2013. The examiner reported symptoms of anxiety, panic, hypervigilance, depressed mood, lack of motivation, and fleeting suicidal thinking. The examiner opined that the Veteran’s condition produced occupational and social impairment with an 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 Board finds the examiner’s opinion to be competent, credible and probative of the Veteran’s psychological condition during the relevant time period. The examiner’s report is supported by an in-person examination, mental health expertise, review of the relevant medical records, proper consideration of lay statements, and sufficient rationale. The Veteran’s experiencing of reduced occupational functioning as a result of interpersonal difficulties, along with the other reported symptoms, more closely approximates the criteria for a rating of 50 percent for the period from January 30, 2013. Accordingly, the Board finds that competent and probative medical and lay evidence is against finding that the Veteran’s mental health symptoms result in either total occupational and social impairment or occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as of January 30, 2013. Specifically, the Board engaged in a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran's psychiatric disability, but finds that her mental health symptoms do not more nearly approximate a 70 percent or 100 percent rating as of January 30, 2013. The exhibited symptoms of depressed mood, anxiety, symptoms of panic, hypervigilance, fleeting suicidal thinking, are specifically contemplated under the rating criteria for a 50 percent evaluation. See 38 C.F.R. § 4.130. The Veteran has endorsed experiencing symptoms of anxiety and panic. This endorsement more closely approximates the rating evaluation of 50 percent than 70 percent. The 70 percent criteria reference experiencing near-continuous panic or depression that impacts one’s ability to function independently. The 50 percent criteria include experiencing panic attacks more than once a week. In this case, the Veteran’s statements regarding experiencing symptoms of anxiety daily do not support a finding of a frequency of such symptoms to more nearly approximate a near-continuous panic that prevents the Veteran from functioning independently. The record contains no such evidence and the Veteran reports to live independently without the need to rely upon someone else on the basis of experiencing near-continuous panic. The Veteran also endorses the symptom of irritability. Despite experiencing irritability, the record contains no indication that the irritability results in periods of violence or causes the Veteran to be in persistent danger of hurting herself or others. The Veteran’s irritability can be more closely approximated to the criteria for 50 percent, that includes disturbances of motivation and mood, rather than the symptoms provided under either the 70 percent or the 100 percent criteria which both include references to violence. The Veteran also endorses feelings and symptoms related to hypervigilance. This symptom most closely approximates the 50 percent criteria which includes disturbances of motivation and mood. The record does not indicate that the Veteran’s feelings of hypervigilance rise to the level of obsessional rituals that interfere with routine activities, as described in the 70 percent criteria, or persistent delusions or hallucinations, as described in the 100 percent criteria. The record indicates that the Veteran is still able to go in public and carry on a normal routine despite feelings of hypervigilance. Finally, the Veteran reports having no speaking relationship with her youngest son. While this does demonstrate some difficulty in maintaining effective relationships, the record also contains several indications of successful social interactions. In this regard, the Veteran reports having a few friends that she enjoys spending time with, she enjoys sewing and makes dresses to send to third world countries, reports having a lot of interests, and is active in church. When looking at the overall state of the competent evidence, the Board finds that level of social interaction and success more closely approximates the 50 percent criteria than the 70 or 100 percent criteria. As noted above, the record show an ability (not an inability) to establish or maintain relationships. The VA examiner’s report indicated that the Veteran suffers from fleeting suicidal thoughts. See Bankhead, 29 Vet. App. at 20 ("[T]he presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."); see id. (affirming that suicidal ideation does not require suicidal intent, a plan, or prepatory behavior). In looking at the frequency of this, the Board notes that the record shows that this one indication of fleeting suicidal thoughts is an isolated instance. In this regard, the symptom is not repeated at any time before or after in the record. Further review on the suicidal thoughts indicates that the Veteran indicated a feeling of not wanting to be here but denied any suicidal intent or plan. The Board finds that this is a factor in looking at the severity of this symptoms. The remainder of the record contains repeated denials of any suicidal thoughts. For instance, at numerous treatment encounters, suicide risk assessments were performed, all of which were negative. As such, the Board finds that the frequency and duration of this symptom, when viewed against other evidence of record, to include the VA treatment records showing a consistent denial of suicidal or homicidal ideation, are not such that the Veteran's overall disability picture is more nearly approximated by the next-higher evaluation. Additionally, there is no indication that the fleeting thoughts cause a deficiency in any area, and certainly not in most areas. (Continued on the next page)   All possible applicable diagnostic codes have been considered, but the Veteran could not receive a higher or separate rating for her psychiatric symptoms as of January 30, 2013. See 38 C.F.R. § 4.130. Based on the foregoing, the evidence shows symptomatology more nearly approximated by those contemplated by the 50 percent criteria from January 30, 2013 forward. Therefore, the Board finds that the Veteran’s psychological condition warrants an assignment of a 50 percent rating, but not higher, throughout the rating period on appeal. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9411. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Attorney Advisor