Citation Nr: 20031430 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 19-05 883A DATE: May 5, 2020 ORDER Entitlement to a rating of 50 percent, but no higher, for an acquired psychiatric disorder is granted. FINDING OF FACT The Veteran’s acquired psychiatric disorder have manifested by symptoms which are most consistent with occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating of 50 percent, but no higher, for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 through July 1973. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a rating of 50 percent, but no higher, for an acquired psychiatric disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s service-connected acquired psychiatric disorder is rated under 38 C.F.R. §§ 4.130, Code 9400 at 30 percent disabling. Except for eating disorders, all psychiatric disabilities are evaluated pursuant to General Rating Formula for Mental Disorders. The Veteran asserts that his acquired psychiatric disability is more severe than the current rating assigned, the Board agrees. Under Diagnostic Code 9400, a 30 percent disability evaluation is contemplated 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, mild memory loss (such as forgetting names, directions, recent events); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 50 percent rating is warranted when there is 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 rating is warranted when there is 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 inability to establish and maintain effective relationships. Id. To be assigned a particular rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “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, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. In October 2010, the Veteran was afforded a VA examination for his acquired psychiatric disorder. He informed that he maintained good relationships with his siblings and children. No changes in his daily activities or social functioning were noted since he developed his mental condition. Regarding employment, his last job lasted for 27 years and had ended due to his drug use. Upon examination, his hygiene and behavior were appropriate. His attention and focus were impaired. He did not exhibit symptoms of delusions, hallucinations, suicidal ideation, or homicidal ideation. The examiner opined that the Veteran’s acquired psychiatric disorder caused reduced reliability and productivity. In February 2011, treatment notes documented symptoms of avoidance of activities, places, or people. He had noted detachment and restricted affect. Irritability, difficulty concentrating, and hypervigilance were also recorded. At the time, the Veteran reported significant depressed mood, but denied suicidal ideation or suicide attempts. He endorsed a history of fighting. Regarding social activities, he reported he volunteered at a church and had friends from a support network. In July 2014, the Veteran sought treatment for feelings of depression and suicidal thoughts without a plan. He also reported hallucinations and drug and alcohol use. Despite these symptoms, he reported that he enjoyed spending time with his grandkids. He was currently living with his sister. In September 2015, he denied panic attacks or obsessive thoughts. However, he reported hallucinations described as seeing people and hearing things that are not there. In March 2016, medical evidence documented symptoms of an increased startle response and nightmares. By July 2017, an increase in depressive symptoms was reported. The Veteran again reported suicidal ideation and homicidal ideation. Mild visual hallucinations were endorsed. In September 2019, the Veteran was afforded another VA examination for his acquired psychiatric disorder. He informed that he maintained a close relationship with his six siblings and had been in a relationship for over a year. He still got along with his children. He was attending church. Regarding treatment, had not received psychiatric treatment within the past year. However, he noted active symptoms of withdrawal from others and activities, nightmares, being afraid of alleys, insomnia due to hyperarousal, irritability, and mistrust of others. Notable symptoms of his acquired psychiatric disorder also included anxiety, suspiciousness, and chronic sleep impairment. Upon examination, his grooming was adequate. His speech was normal and though processes were intact. Ultimately, the examiner opined that he had occupational and social impairment with 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 examiner further opined that it is more likely than not that the Veteran’s current symptoms of withdrawal and social isolation were due to his strokes and consequent decline in functioning. Reviewing the record in the light most favorable to the Veteran, his acquired psychiatric disorder has manifested with symptomology that is consistent with a level of severity most approximated by a 50 percent rating. The Veteran has endorsed limiting symptoms of hypervigilance, withdrawal from activities and others, detachment, and suicidal and homicidal ideation. Additionally, he presented with a history of fighting, mistrust of others, and irritability. Such symptoms indeed exhibited problems with impaired judgment, disturbances in mood and motivation, and caused difficulty in establishing and maintaining effective work relationships. Therefore, the Board finds that the Veteran’s symptomatology more nearly approximates the criteria for 50 percent rating. However, the Veteran’s service-connected acquired psychiatric disorder was manifested by no more than occupational and social impairment with reduced reliability and productivity because his acquired psychiatric disability, although serious at times, still allowed him to maintain good relationships with siblings, grandkids, and a significant other. The Veteran also maintained the ability to engage in activities of daily living, including attending church and spending time with his grandchildren. He did not show persistent problems with maintaining proper grooming or attire, or other persistent symptomology warranting a higher rating. Further, he had no history of panic attacks or impaired impulse control. Therefore, the Board finds the Veteran’s symptoms warranted a higher rating of 50 percent disabling. His symptomatology does not more nearly approximate the criteria for a 70 percent rating, or higher. Both the medical and lay evidence support that the Veteran’s symptoms during this timeframe were of a similar frequency, type, duration, and severity of those associated with a 50 percent rating. The symptomatology noted in the medical and lay evidence more nearly approximates occupational and social impairment with reduced reliability and productivity, but do not more nearly approximate the criteria for a higher evaluation. The Board takes notice that the September 2019, examiner opined occupational and social impairment consistent with a 30 percent rating. However, the Board finds the totality of the record implies more severe limitations and congruent with the criteria for a 50 percent rating. In so finding, the Board considered the ruling in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Here, the Court found that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. Thus, the Court found “the language of the regulation indicates that the 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.” Id. The evaluation of mental disorders requires consideration of the effects of each of the veteran’s mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. The totality of the Veteran’s symptoms, including periods of suicidal ideations, have only resulted in reduced reliability and productivity. Notably, there is no evidence that persistent suicidal ideations interfered significantly with the Veteran’s functioning in social relationships or occupational tasks. Rather, he often endorsed vague suicidal ideations without a history of plans or attempts. He was also able to maintain activities of daily living and various relationships. Thus, the suicidal ideations in conjunction with his other symptoms do not cause occupational and social impairment with deficiencies in most areas to warrant a higher rating. The Board also finds that the Veteran’s service-connected acquired psychiatric disorder does not meet the criteria for a disability rating greater than 50 percent at any time during the appellate period. To obtain a 70 percent rating, the evidence must show that he has occupational and social impairment with deficiencies in most areas. The Veteran was found to be able to function relatively normally in most areas, such as participation in church, maintaining relationships with family and others, and caring for himself. Additionally, the Veteran’s symptoms are not reflective of the more serious symptoms discussed for a 70 percent evaluation in the Rating Schedule, such as 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, or neglect of personal appearance and hygiene. Notably, he admitted not working due past drug usage or being told he was too old to work. Even considering his reports of suicidal ideations, his total disability picture does not show symptoms most analogous to social and occupational impairment with deficiencies in most areas. The Board also considered the attorney’s arguments submitted in April 2020. The September 2019 DBQ has deficiencies, but the Board agrees with the representative that the remaining evidence of record is sufficient to warrant a higher rating. As previously mentioned, the September 2019 DBQ’s examiner opined occupational and social functioning equivalent to a 30 percent rating. However, a review of the totality of the record supports the Veteran’s symptoms are most consistent with a 50 percent rating, and no higher. Even though the Veteran’s attorney alludes that a higher rating of 70 or 100 percent is warranted, the probative evidence of record does not support finding a rating higher than 50 percent. Again, the Veteran’s occasional suicidal ideation has not caused impairment in most or all areas of social and occupational functioning—especially in light of his other symptoms. In April 2018 treatment notes, the Veteran reported that he experienced audio and visual hallucinations “all the time.” Upon further questioning, however, he described visual perceptions and illusions and had no clear audio or visual hallucinations. Notably, he denied visual and audio hallucinations in various treatment visits, including a subsequent July 2018 examination. Despite endorsing hallucinations, they have not interfered the Veteran’s ability to live alone, maintain adequate grooming and hygiene, care for his sick wife, or maintain relationships with his family or grandkids. The Veteran has been fully oriented consistently throughout the period on appeal. Thus, a higher rating than 50 percent for the Veteran’s acquired psychiatric disability is not warranted. In sum, the most probative evidence of record shows that the Veteran’s acquired psychiatric disability symptoms more nearly approximate those associated with a 50 percent rating. In reaching this conclusion, the Board has considered both the lay and medical evidence and the specific symptoms associated with this Veteran’s acquired psychiatric disability. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.