Citation Nr: 20021334 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-45 029 DATE: March 25, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for major depressive disorder with posttraumatic stress disorder (hereinafter “psychiatric disability”) prior to February 6, 2018 is denied. REMANDED Entitlement to a rating in excess of 50 percent for a psychiatric disability from February 6, 2018 is remanded. FINDING OF FACT Prior to February 6, 2018, the Veteran’s psychiatric disability has been manifested by symptoms no worse than those resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as depressed mood, anxiety and chronic sleep impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for a psychiatric disability prior to February 6, 2018, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, DC 9434, General Rating Formula for Mental Disorders (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1968 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran filed a timely notice of disagreement in October 2016, contending that he is entitled to an initial rating in excess of 30 percent for his psychiatric disability. Thereafter, the July 2018 rating decision assigned a 50 percent rating for the Veteran’s psychiatric disability effective February 6, 2018. As the rating periods regarding the issues of entitlement to an initial rating in excess of 30 percent for a psychiatric disability prior to February 6, 2018 and a rating in excess of 50 percent for a psychiatric disability from February 6, 2018 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating in excess of 30 percent for a psychiatric disability prior to February 6, 2018 The Veteran contends that his service-connected psychiatric disability warrants a higher initial rating prior to February 6, 2018. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA 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. 38 C.F.R. § 4.126(a) (2019). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2019). Prior to February 6, 2018, the Veteran’s psychiatric disability is currently rated as 30 percent disabling under DC 9434. 38 C.F.R. § 4.130 (2019). Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when a mental disability results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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). Id. 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 per 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 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “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). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. at 116-17. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria; rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). Review of the Veteran’s post-service VA treatment records prior to February 6, 2018 show symptoms of depressed mood, irritability, and decreased social activities. However, the Veteran’s insight, judgment, and memory were intact, he denied suicidal and homicidal ideations, and he was oriented to time, place, and person. The Veteran underwent a VA examination for his psychiatric disability in September 2016. He reported that his marriage at the time was “good,” that he had a good relationship with two of his children, that he did not have many friends, and that his leisure activities included golfing, writing, and exercising. He indicated that after practicing law for 33 years, he was winding his practice due to the economy. He denied suicidal and homicidal ideations. The examiner noted that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, and chronic sleep impairment, but that his psychiatric disability was not severe enough to interfere with occupational and social functioning or require continuous medication. Upon review of the record, the Board finds that, prior to February 6, 2018, an initial rating in excess of 30 percent for the Veteran’s psychiatric disability is not warranted. The evidence from the Veteran’s September 2016 VA examination, as well as post-service VA treatment records prior to February 6, 2018, reflects that the Veteran’s psychiatric disability more nearly approximates a 30 percent initial rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms of depressed mood, anxiety, and chronic sleep impairment. Based on the evidence of record, prior to February 6, 2018, the Veteran has not demonstrated the symptoms necessary for a 50 percent initial rating for his psychiatric disability. His September 2016 VA examination and post-service VA treatment records prior to February 6, 2018 do not reflect symptoms of flattened affect, panic attacks more than once a week, difficulty understanding complex commands, impaired short-term or long-term memory, impaired judgement, disturbances of motivation and mood, or difficulty establishing and maintaining effective work and social relationships. On the contrary, the medical evidence shows that the Veteran’s memory was not impaired, that he was alert and oriented, that his thought process was normal, and that he had good insight and judgment. While the Veteran reported that his social activities had declined, in January 2018, he stated that he felt more joy when he engaged in outdoor activities with friends, and reported having a good relationship with his wife and two of his children during his September 2016 VA examination. Further, at the time of his September 2016 VA examination, the Veteran indicated that he continued to work as a lawyer, although he was winding down his practice due to economic reasons. At most, for the period on appeal, prior to February 6, 2018, his symptoms reflect depressed mood, anxiety, and chronic sleep impairment. Therefore, the Veteran’s psychiatric disability does not warrant a 50 percent initial rating prior to February 6, 2018. Accordingly, the Board concludes that the current 30 percent initial rating for the Veteran’s psychiatric disability is appropriate, and an initial rating in excess of 30 percent prior to February 6, 2018 is not warranted. REASONS FOR REMAND Entitlement to a rating in excess of 50 percent for a psychiatric disability from February 6, 2018 is remanded. The Veteran indicated on his Form 9 that he continues to receive treatment for his psychiatric disability from the Broward VA Medical Center. Review of the record shows post-service VA treatment records up to March 2019. Records from March 2019 to the present are not in the Veteran’s claims file. They appear relevant to the Veteran’s claim as they may include further information pertaining to the Veteran’s history of symptoms. VA has a duty to seek these records. 38 U.S.C. § 5103A(b)(1). The matter is REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file, to specifically include VA treatment records from the Broward VA Medical Center from March 2019 to the present. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. (Continued on the next page)   2. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.