Citation Nr: 1807500 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disorder, to include anxiety disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from August 2006 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran had initially filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). However, based on the diagnosis of record, the claim has been re-characterized as shown on the title page. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In the September 2012 rating decision, the RO granted entitlement to service connection for anxiety disorder (claimed as posttraumatic stress disorder (PTSD)) and assigned an initial 10 percent evaluation effective December 30, 2009, the day after the Veteran's discharge from active duty service. During the pendency of the appeal, the RO found that the initial rating for the Veteran's disability should have been higher and issued a rating decision increasing the Veteran's rating from 10 percent to 30 percent, effective December 30, 2009. However, as a 30 percent rating is not the maximum rating available, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran requested a travel board hearing on his VA Form 9 and a hearing was scheduled for March 2017. The Veteran did not attend the hearing. As the Veteran did not request a postponement or subsequently submit a motion for a new hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d) (2017). FINDING OF FACT Throughout the appeal period, the Veteran's acquired psychiatric disorder, which resulted in symptoms including chronic sleep impairment, hypervigilance, anger and irritability, and mild memory problems, was not manifested by occupational and social impairment with reduced reliability and productivity or more severe functional limitations. CONCLUSION OF LAW The criteria for an initial rating in excess 30 percent for an acquired psychiatric disorder, to include anxiety disorder and major depressive disorder, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9413 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R., Part 4 (2017). 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 (2017). 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 veteran working or seeking work. 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2017). When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). Where, as in this case, the question for consideration is the propriety of the initial rating assigned, evaluation of the all evidence and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered and found no need for the assignment of "staged" ratings for any part of the appeal period. The Veteran is in receipt of a 30 percent rating for the entire appeal period under DC 9413. A 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 (2017). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned for 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 that is 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 inability to establish and maintain effective relationships. "[I]n the context of a 70[%] rating, [38 C.F.R.] § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: "The . . . regulation contemplates [: (1)] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation [; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). "Suicidal ideation appears only in the 70 percent evaluation criteria [] [t]here are no analogues at the lower evaluation levels." Also, "[b]oth passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017) (precedential panel decision). Evidence of more than thought or thoughts of ending one's life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. "[T]he presence of suicidal ideation alone [] may cause occupational and social impairment with deficiencies in most areas." Bankhead, No. 15-2404, slip op. at 11. Also it may not be found that a claimant does not have suicidal ideation merely because he has not been hospitalized or treated on an inpatient basis, as this would impose a higher standard than the criteria in the Diagnostic Codes for mental disorders. Bankhead, slip op. at 12. "VA did not include in the criteria for a 70 percent evaluation the risk of actual self-harm. In fact, to the extent that risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100 percent evaluation as 'persistent danger of hurting self, a symptom VA deemed to be typically associated with total occupational and social impairment. 38 C.F.R. § 4.130." However, VA adjudicators are not "absolutely prohibited from considering [] risk of self-harm in assessing [a] level of occupational and social impairment" but there must be a differentiation between suicidal ideation, which is generally indicative of a 70 percent evaluation, and a risk of self-harm, the persistent danger of which is generally indicative of a 100 percent evaluation. Bankhead, slip op. at 12. A 100 percent disability rating is assigned 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, or for the veteran's own occupation or name. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples of symptoms "like or similar to" the psychiatric symptoms in determining the appropriate schedular rating assignment, and has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating for the psychiatric disorder. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). "A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran's capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a) (2017). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b) (2017). The Board finds that based on the evidence, as discussed in further detail below, a rating in excess of 30 percent is not warranted for any period on appeal. Turning to the evidence, the Veteran was provided a mental health assessment in October 2009. There, he endorsed having repeated, disturbing memories, thoughts, images, and dreams of stressful military experiences. He indicated that at times he suddenly felt or acted as if the stressful experiences were happening again. He noted feeling very upset when reminded of those experiences, including having physical reactions, i.e. heart pounding, trouble breathing or sweating. The Veteran also indicated that he attempted to avoid thinking, talking about, or participating in activities that reminded him about those stressful military experiences and had some trouble remembering important parts of experiences. He reported a loss of interest in things he used to enjoy, feeling distant or cut off from other people, feeling emotionally numb, feeling as if his future would somehow be cut short, trouble falling or staying asleep, irritability, difficulty concentrating, and hypervigilance. The Veteran was provided a VA examination in July 2011. There, he reported difficulty sleeping. He stated that he was only able to sleep for three or four hours a night due to physical pain and dreams about events that happened in Iraq. He discussed suspiciousness and hypervigilance, stating that he did not like to be in large crowds and had to sit with his back to the wall. The Veteran stated that he had angry thoughts during stressful situations and got "really pissed off" in situations that should bother him very little. He also discussed having some memory problems, forgetting things like birthdays, anniversaries, and people's names. During the mental status examination, the examiner noted that the Veteran experienced transient suicidal thoughts approximately every one to two weeks with no plan or intent to act on these thoughts. There was no history of attempts. She also noted that the Veteran had some homicidal thoughts about once a week. He stated that he had a "bad taste in his mouth" regarding Muslims, but realized that not all Muslims were bad. He indicated that he would never act on these thoughts unless provoked due to a life threatening situation. The examiner also found that the Veteran had some memory loss or impairment and did experience anxiety. The Veteran also experienced hypervigilance and chronic sleep impairment. The examiner determined that the Veteran had no impairment of thought processes or communication, or delusions or hallucinations, nor did he display inappropriate behavior. The Veteran displayed no obsessive or ritualistic behavior, and his rate and flow of speech were normal. He was oriented to person, place and time, and the examiner found that the Veteran was able to maintain personal hygiene and other activities of daily living. Further, the examiner noted that the Veteran did not experience depression or panic attacks. The Veteran was diagnosed with anxiety disorder, not otherwise specified. His Global Assessment of Functioning (GAF) Score was 70. The examiner noted that the Veteran did experience various psychological symptoms; however, they did not appear to be impacting his work efficiency and/or occupational tasks at his job as a public safety officer. She also stated that the Veteran's prognosis was good as he had a positive support system and was insightful regarding his symptoms. She reported that he was able to retain gainful employment and engage socially with others and she recommended individual or group therapy to address some of his symptoms. See July 2011 VA Examination. The Board has carefully reviewed the available evidence of record and finds that the preponderance of the evidence is against the assignment of an increased disability rating in excess of 30 percent for an acquired psychiatric disorder, to include anxiety disorder. The frequency, severity, and duration of the Veteran's symptoms more nearly approximate 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 his reported symptoms of anxiety, suspiciousness/hypervigilance, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, and recent events. The Veteran's GAF score of 70 supports this conclusion as it indicates that the Veteran has some mild symptoms or some difficulty in social, occupational, and school functioning, but generally functions pretty well and has meaningful interpersonal relationships. As set forth earlier in this decision, a 50 percent disability evaluation under the General Rating Formula for Mental Disorders § 4.130 requires demonstrated evidence of occupational and social impairment, with reduced reliability and productivity due to such symptoms as: a 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/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413 (2017). In regard to demonstrated evidence of occupational and social impairment, with reduced reliability and productivity due to various symptoms such as flattened affect, the Veteran's July 2011 examination appeared to indicate his affect was normal. With regard to circumstantial, circumlocutory or stereotyped speech, the Veteran's speech was noted as of a normal rate and tone. No panic attacks were indicated. Impairment of memory has been demonstrated in the record; however, as previously discussed, the impairment of the Veteran's memory is of the type contemplated by the 30 percent evaluation. The record does not indicate that the Veteran exhibits either impaired judgment, impaired abstract thinking, or difficulty in understanding complex commands. As for disturbances of motivation and mood, the examiner noted that the Veteran did experience anxiety, but that this did not significantly interfere with his day-to-day functioning. The last criterion under a 50 percent rating is difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran did appear to be experiencing various psychological symptoms; however, they did not appear to be impacting his work efficiency and/or occupational tasks. Indeed, the Veteran reported that he was working as a Department of Public Safety Officer at the airport. She also stated that the Veteran had a positive support system, indicative of positive social relationships. The Veteran also reported that he was best friends with his sister, had a good relationship with his parents, spent time with his wife and some friends from work, and went to the pool at his apartment complex and BBQs in his free time. The foregoing indicates that the findings upon examination are not consistent with the symptoms which would establish a 50 percent rating disability. A 70 percent evaluation requires demonstrated evidence of 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 work-like setting); and/or an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413 (2017). The Veteran reported experiencing transient suicidal ideation approximately every one to two weeks with no plan or intent to act on these thoughts. There was no history of suicide attempts. The Board finds that facts of this case are distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017) in which the Veterans Claims Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. In this case, while the Veteran has reported passive suicidal ideation, the preponderance of the evidence does not demonstrate that this ideation has resulted in approximate occupational and social impairment with deficiencies in most areas, but rather reflects a lesser degree of impairment. The Veteran has maintained consistent employment as a public safety officer and has a positive relationship with his family members and friends. With regard to obsessional rituals, none were found upon examination. The Veteran's speech was normal. Concerning near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, the Veteran did not report experiencing panic attacks and the July 2011 VA examiner did not find that the Veteran was depressed. There was no impaired impulse control noted or spatial disorientation. The examiner found that the Veteran was able to maintain his personal appearance, hygiene, and other basic activities of daily living, and there was no evidence of difficulty in adapting to stressful circumstances. Further, as previously discussed, the Veteran has been able to maintain his job despite his symptoms and has established and maintained effective relationships. The examination findings above do not rise to the level in frequency, duration or severity of any other of the criteria described in the 70 percent rating. A 100 percent evaluation is warranted where the evidence shows that a mental disorder causes [t]otal 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). No gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior were reported or found on examination. With regard to the persistent danger of hurting oneself or others, the Board acknowledges the Veteran's reports of suicidal and homicidal ideation. As previously discussed, the Veteran made no previous attempts of either suicide or homicide, nor did he report the intent or plan to do either. Further, the Veteran demonstrated awareness of the irrationality of his negative feelings towards Muslims and stated he would never act on those thoughts unless in a life threatening situation. The Board finds that, based on the medical evidence and the Veteran's statements, he does not satisfy the criteria of persistent danger of hurting oneself or others. Moreover, as previously discussed, the Veteran was able to perform activities of daily living and maintain personal hygiene, was oriented in all spheres, had positive social relationships, and was able to maintain gainful employment. While the Veteran had some memory loss, this did not rise to the level of memory loss for names of close relatives, own occupation, or own name. Once again in using frequency, duration and severity as a guide, the Board does not find that the Veteran's symptoms rise to the level of a 100 percent evaluation. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim. The doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 4.3 (2017). ORDER Entitlement to an initial rating in excess of 30 percent for an acquired psychiatric disorder, to include anxiety disorder, is denied. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs