Citation Nr: 20030596 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 18-34 182A DATE: April 30, 2020 ORDER Entitlement to an increased initial rating of 70 percent, but no higher, for somatic symptom disorder prior to November 27, 2017 is granted. Entitlement to a rating greater than 70 percent for somatic symptom disorder from November 27, 2017 is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s somatic symptom disorder was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. His somatic symptom disorder was not manifested by symptoms resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to November 27, 2017, the criteria for an initial disability rating of 70 percent, but no higher, for somatic symptom disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9421 (2018). 2. From November 27, 2017, the criteria for a disability rating greater than 70 percent for somatic symptom disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9421 (2018). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1987 to December 1999 and October 2001 to November 2002. He appeals a February 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying an initial rating greater than 50 percent for his somatic symptom disorder. During the appeal period, the AOJ increased the Veteran’s rating to 70 percent, effective November 27, 2017. See July 2018 rating decision. The Board notes that after the AOJ’s issuance of the July 2018 statement of the case, new records were added to the Veteran’s file. Regularly, the Board must obtain a waiver from the Veteran to allow the Board to consider additional evidence received after the appeal has been certified; however, this new evidence is not pertinent to the appeal at hand and a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1304(c). Disability ratings are determined by applying a set schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Here, the Veteran contends that his somatic symptom disorder is more severe than his 50 percent rating prior to November 27, 2017 and 70 percent thereafter would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9421. According to 38 C.F.R. § 4.130, Diagnostic Code 9421, 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, and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9421. 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 work-like 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 name. Id. When evaluating a mental disorder, the rating agency shall assign an evaluation 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 an evaluation solely on the basis of social impairment. See 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). After review of the entire medical and lay evidence of record, the Board finds the Veteran’s psychiatric symptoms warrant a 70 percent disability rating, but no higher, throughout the entire appeal period. In December 2016, the Veteran submitted an initial psychiatric evaluation that assessed the severity and etiology of his acquired psychiatric disorders. See November 2016 Dr. S.C. examination report. Dr. S.C. concluded the Veteran’s psychiatric symptoms manifested with chronic sleep impairment, difficulty adapting to stressful circumstances, mild memory loss, anxiety, depressed mood, and flattened affect. Id. While Dr. S.C. noted the Veteran exhibited disturbances of motivation and mood, she also noted his “excessive anxiety and worry…cause clinically significant distress and impairment in important areas of functioning.” Id. Dr. S.C. also noted the Veteran had “thoughts of death.” Id. After examining the Veteran and reviewing his file, Dr. S.C. concluded the Veteran’s psychiatric disabilities caused occupational and social impairment with deficiencies in most areas, a conclusion that reflects the criteria for a 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9421. Next, the Veteran was afforded a VA psychiatric examination. There, the VA examiner concluded the Veteran’s disability caused occupational and social impairment with reduced reliability and productivity, criteria warranting a 50 percent rating. See January 2017 VA examination report. Unlike Dr. S.C., she did not note evidence that the Veteran exhibited symptoms of difficulty adapting to stressful circumstances, suicidal ideation, or near-continuous panic or depression affecting the ability to function appropriately and effectively. Id. However, the evidence of record reflects the Veteran exhibited these symptoms throughout the appeal period. For example, the Veteran expressed he had “thoughts of death” and, also, suicidal ideation. See November 2016 Dr. S.C. examination report; see also October 2017 VA treatment records. Additionally, both November 2016 and November 2017 psychologists found the Veteran’s ability to function appropriately and effectively was impaired by his continuous panic and depression. See November 2016 Dr. S.C. examination report (“excessive anxiety and worry…cause clinically significant distress and impairment in important areas of functioning”); see also November 2017 Dr. S.C. examination report (“near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively.”). Additionally, the November 2017 psychologist, like the November 2016 psychologist, concluded the Veteran’s psychiatric symptoms more closely approximate the criteria for occupational and social impairment with deficiencies in most areas. See November 2017 Dr. S.C. examination report. After review of the record and three psychiatric examinations, the Board finds the evidence of record more closely approximates the criteria for a 70 percent rating during the entire appeal period. The record does not, however, reflect that the Veteran’s symptoms warrant the next higher rating, 100 percent, as the evidence does not support a finding of total social or occupational impairment. Socially, the Veteran consistently reported no close friends and stated he has no social or recreational outlets. See November 2016 Dr. S.C. examination report; see also November 2017 VA treatment records. The Veteran is not married and has three children, two of whom are adults. See November 2016 Dr. S.C. examination report. His adult children lived in his home but planned to move-out in the summer of 2018 and the Veteran expressed “enormous relief at having his place to himself.” See January 2018 VA treatment records. Nevertheless, the Veteran took a vacation to Florida with his daughter, planned a second trip together, and he consistently described his relationship with his children as “good.” Id.; see also November 2017 Dr. S.C. examination report. Thus, while the Veteran may be unable to establish effective relationships, the Board finds the Veteran does not exhibit total social impairment as he maintains relationships with his children. Occupationally, the Veteran reported employment as a systems analyst for over 15 years; he worked at Walter Reed Hospital until its closure and was then transferred to Bethesda Naval Hospital. See November 2016 Dr. S.C. examination report; see also January 2017 VA examination report. Thus, the Board finds the Veteran does not exhibit total occupational impairment. While the Veteran admitted to suicidal ideation, he continuously denied any prior attempts or current intent. See November 2017 Dr. S.C. examination report; see also October 2017 VA treatment records. He also denied homicidal ideation, delusions, and hallucinations throughout the appeal period; thus, the record reflects the Veteran is not a persistent danger to himself or others. Id. Additionally, at examinations and VA appointments, the Veteran was properly oriented, had logical thought process, clear speech, and an affect congruent to his mood. See, e.g., January 2018 VA treatment records. Further, while the Veteran reported mild memory loss, the evidence does not reflect the Veteran’s memory is so impaired he forgets hardwired information such as the names of close relatives or his own occupation. See November 2016 Dr. S.C. examination report. Finally, while his November 2016 examiner noted the Veteran exhibited an “intermittent inability to perform activities of daily living,” this is not reflected further in the record. Id. For example, the January 2017 VA examiner found the Veteran “appropriately groomed and had good hygiene.” (Continued on the next page)   In summation, while his symptoms are severe, the record reflects the Veteran is not grossly inappropriate or impaired in thought. He is not disoriented or a persistent danger to himself or others and he is able to perform activities of daily living. Additionally, the record reflects the Veteran maintains employment. As such, the Board finds the Veteran’s symptoms greatly impair his social relationships, judgment, thinking and mood, but they do not rise to the level of total social or occupational impairment, the criteria required for a 100 percent rating. Accordingly, the Board grants an increased initial rating of 70 percent, but no higher, prior to November 27, 2017, and denies a rating greater than 70 percent from November 27, 2017. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.