Citation Nr: 20008499 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 18-17 139 DATE: January 31, 2020 ORDER Entitlement to a rating greater than 30 percent prior to November 20, 2018, and greater than 50 percent from April 1, 2019, for an acquired psychiatric disorder is denied. FINDING OF FACT 1. Prior to November 20, 2018, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. After April 1, 2019 the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW 1. Prior to November 20, 2018, the criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. After April 1, 2019, the criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to March 1973. The Board remanded the claim in May 2019. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating greater than 30 percent prior to November 20, 2018, and greater than 50 percent from April 1, 2019, for an acquired psychiatric disorder is denied. Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran was hospitalized for psychiatric treatment from November 20, 2018 to March 5, 2019. A temporary total rating was assigned, effective November 20, 2018 to April 1, 2019, after which a 30 percent was effective. See June 2019 rating decision. In a September 2019 rating decision, the rating was increased to 50 percent from April 1, 2019. The issue before the Board is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating greater than 30 percent prior to the November 2018 (when the Veteran was hospitalized) and greater than 50 percent after discharge. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability greater than 30 percent before November 20, 2018 or an evaluation greater than 50 percent after April 1, 2019. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA and private treatment records, the December 2015 VA examination, and the Veteran’s lay statements show that his service-connected psychiatric disability manifested symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment and mild memory loss). He also had some symptoms associated with a 50 percent or greater rating (disturbances of motivation and anxiety attacks every couple of days, non-persistent auditory hallucinations). He also had symptoms that are not listed with a specific rating, such as, fatigability. The Veteran was voluntarily admitted for psychological treatment in November 2018 because he felt low self-worth, was not sleeping well due to nightmares of past traumatic experiences, and had difficulty with “bad vibes” of being in danger even when not in danger. The Board notes that this admission was not acute as the Veteran scheduled the in-hospital treatment at least one-week in advance. The Board finds that prior to the November 20, 2018 date of admission, the severity, frequency, and duration of the Veteran’s symptoms were less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. The Veteran reported that these symptoms were not present daily but would increase in severity when he around someone he considers as “dumb.” VA and private treatment records, the September 2019 VA examination, and the Veteran’s lay statements show that the Veteran’s acquired psychiatric disorders manifested symptoms associated with a 50 percent rating (depressed mood, anxiety, suspiciousness, panic attacks more than once per week chronic sleep impairment, disturbances of motivation and mood, mild memory loss and difficulty in establishing and maintaining effective work and social relationships). He also has symptoms associated with a 70 percent or greater rating (occasional thoughts of suicide, but no active ideation and none in past six months; no suicide attempts in past year and audible hallucinations). There are some notations of the Veteran reporting suicidal ideation and audible hallucinations. Suicidal ideation is contemplated by the 70 percent criteria and is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria, as is audible hallucinations. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation and audible hallucinations has not risen to the level contemplated by the 70 percent or 100 percent disability ratings. The Veteran reported experiencing suicidal ideation only once during a period of several years, and he denied suicidal ideation in existing treatment records, his November 2018 mental health hospitalization and during the September 2019 VA examination. The Board also finds that after April 1, 2019, the level of impairment caused by the Veteran’s symptoms do not more closely approximate the level associated with a 70 percent rating. The examiner characterized the related occupational and social impairment as reduced reliability and productivity. Mental status examinations in VA and private treatment records and the September 2019 VA examination indicate that the Veteran’s panic attacks are more than once per week, and he has difficulty in establishing and maintaining effective work and social relationships. While after April 1, 2019, the Veteran did experience symptoms contemplated by a 50 percent rating of panic attacks more than once a week, impairment of short- and long-term memory, forgetting to complete tasks when in a hurry, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, the evidence overall does not demonstrate the level of impairment associated with a 70 or greater percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Accordingly, the symptoms manifested by the Veteran’s acquired psychological disorder do not support a rating greater than 30 percent prior to April 1, 2019 and greater than 50 percent thereafter. Therefore, the claim for an increased rating is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.