Citation Nr: 20062811 Decision Date: 09/24/20 Archive Date: 09/24/20 DOCKET NO. 17-60 915 DATE: September 24, 2020 ORDER More than a 50 percent rating for service-connected adjustment disorder with depressed mood, anxiety, and pain disorder (psychiatric disability) prior to May 2, 2019 is granted. More than a 70 percent rating for service-connected psychiatric disability at any time is denied. FINDINGS OF FACT 1. Prior to May 2, 2019, there is ample evidence of suicidal ideation as well as deficiencies in mood, thinking, and work (i.e., most areas of functioning) dating back to at least 2010 sufficient to support a higher 70 percent rating throughout the period on appeal. 2. At no point does the evidence show (or the Veteran allege) that his psychiatric disability has produced the type of persistently and grossly disabling symptoms consistent with the sort of total occupational and social impairment required for a higher 100 percent rating. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating are met prior to May 2, 2019. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130 (2019). 2. The criteria for a 100 percent rating for service-connected psychiatric disability are not met at any time on appeal. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1968 to December 1972 and December 1990 to May 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decision. In August 2019, the Board remanded these matters, in pertinent part, for an updated psychiatric examination that was completed in February 2020. Taken with the totality of the medical evidence (including a prior March 2013 VA examination report), that examination describes the severity of the Veteran’s disability on appeal in enough detail to substantially comply with the Board’s prior remand and support this decision. Crucially, the Veteran’s post-remand argument does not allege any inadequate notice or development. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). This appeal previously included four additional claims seeking service connection for right upper extremity neurological disability and higher ratings for migraine headaches, left arm radiculopathy, and a cervical spine disability, but the Veteran opted into a Higher Level Review of those claims under the modernized appeal system, the legacy appeal system no longer applies to them, and they are no longer before the Board at this time. Increased Rating Legal Criteria Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s psychiatric disability is rated according to the General Rating Formula for Mental Disorders. Under the relevant rating criteria, 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. 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. The symptoms listed in VA’s general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather to serve as examples of the type and degree of symptoms or effects that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board cannot differentiate between symptoms attributable to service-connected and nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). Factual Background A January 1979 VA examination noted no psychiatric findings or complaints. An October 1992 peripheral nerves examination report indicates higher cortical functions were intact. September 2009 records include an unremarkable mental status examination. However, October 2010 records show a diagnosis of adjustment disorder with depressed mood after the Veteran called VA's National Suicide Prevention Hotline with reports of suicidal thoughts without plan or intent. At the time, he said he was "very stressed out" and had been experiencing shoulder, back, and left arm pain. He endorsed "thoughts about shooting" himself, especially at night when trying to fall asleep. He denied any intent to harm himself or access to weapons. On mental status examination, he was depressed and irritable and expressed "feeling powerless and dependent" but was otherwise relatively unremarkable. Separate records that month note sleep problems, diminished interest in pleasurable activities, guilt, low energy, and lack of appetite. He denied any abnormal ideation at the time but did report occasional suicidal ideation without intent or plan. A mental status examination was largely unremarkable except for notations of stressed and irritated mood with restricted affect. The diagnosis was depression not otherwise specified (NOS). In November 2010, the Veteran said he suffered from depression since losing his job in April 2010 and denied any prior history of the disorder. He said he had difficulty attaining and maintaining sleep, due largely to pain, reduced appetite, low energy, sad mood, concentration problems, anhedonia, and some slight issues with self-esteem or his view of the future. He also said "he has considered shooting himself to death with a gun" but was unsure if he would actually try. He also endorsed highly distressing anxiety primarily related to his finances. He also reported panic attacks as "the sudden onset of intense fear, accompanied by shortness of breath, a sense of choking, heart racing, and chest pounding, trembling, and sweating, which occur 'a couple of time[s] a week' under any circumstances." His anxiety reportedly exacerbated his medical problems, causing headaches and contributing to concentration difficulty. He also said he had anger that was "quite intense" and "causes thoughts of violence" with "very unpleasant nightmares." He didn't want to be around anyone because of his anger and had withdrawn from his friends because he felt like a failure. He said he considered "no one in his life to be close" but "has no problems in interacting with...store personnel, neighbors, or unfamiliar persons in public places." He also said he had always related well to coworkers and supervisors. He added that he no longer enjoyed any leisure activities that he previously liked. On mental status examination, he said his recent mood had been "sad and angry" and he "generally seemed to be harboring a fair amount of intense unpleasant emotion" that the examiner felt was "perhaps revealed in his rather pressed speech, regular heavy sig[h]s, and mild agitation." The examiner noted he seemed to be fighting back tears occasionally. Still, he had a full and appropriate range of affect and his speech was otherwise unremarkable. The remainder of the evaluation was similarly unremarkable, and he "seemed to concentrate adequately on its various tasks." The examiner did not indicate any other notable deficiencies. The Veteran said he was able to perform his activities of daily living. The diagnosis was a single episode of moderate major depressive disorder, anxiety disorder NOS, and panic disorder without agoraphobia. A December 2010 mental residual functional capacity evaluation found moderate limitation of the Veteran’s ability to understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, complete normal work-days or weeks without interruptions from psychologically based symptoms, perform at a consistent pace without unreasonable amounts of rest, and interact appropriately with the general public. The diagnosis at the time was a single episode of major depressive disorder, anxiety disorder NOS, and panic disorder without agoraphobia. Another doctor had noted he had “pressed speech, mild agitation, and occasionally fought tears” but “no difficulty following simple instructions and seemed to concentrate adequately on various tasks.” The examiner felt the Veteran could bathe and groom himself, care for pets, prepare simple foods, do laundry and yard work, drive, shop, pay bills, maintain bank accounts, use the computer, and socialize while watching games. The Veteran said he was irritable because of chronic pain and tended to avoid people. He also reported concentration issues and recently declined a job because he felt he could not concentrate sufficiently to do it. The examiner found him partially credible but that the evaluation did not fully support his reported severity. The examiner then noted that there were some symptoms of depression and anxiety, but felt the Veteran remained functional. He noted the evidence “suggests that the claimant can understand, remember, and carry out simple, unskilled and semiskilled tasks, not requiring rapid pace or extended concentration.” He could also relate “on at least a superficial basis…with coworkers and supervisors.” Later that month, the Veteran said he called the suicide hotline for help. A subsequent statement alleges that he was “registered with the [Fort Wayne, Virginia] Mental Health Clinic...because [he was] having thoughts of not being able to cope with what is going on in my life.” He also said he couldn’t sleep. In January 2011, the Veteran felt fair but somewhat depressed. He had good hope for the future though sleep was still on the poor side. The provider noted that physical and emotional pain from his childhood may contribute to his level of perceived physical pain as well as depression. A February 2011 mental status examination shows the Veteran's mood and affect reflected feelings of frustration and aggravation but was otherwise unremarkable. In March 2011, the Veteran was respectful and cooperative, but angry. He said his chronic pain exacerbated his feelings. On mental status examination, his mood and affect reflected anger but he denied suicidal ideation and was otherwise unremarkable. Later that month, he denied any abnormal ideation and said he wasn't taking Lithium and Abilify because he wasn't depressed. He reportedly only slept two or three hours nightly because he was up most of the night thinking about his problems. He also had decreased appetite and described his mood as angry, with "ups and downs." He noted fleeting suicidal ideations at night without plans. He felt overwhelmed by financial problems. On mental status examination, he seemed overwhelmed with psychosocial stressors and seemed to have situational depression (though he denied it). He was irritable but calmed with encouragement. He said he was angry all the time and reported fleeting suicidal ideation without a plan when he gets overwhelmed by his stressors. The evaluation was otherwise largely unremarkable. Later that month, he denied any current suicidal or homicidal ideations or plans but said his sleep continued to be poor with only two or three hours nightly. He also said his mood was "up and down" but denied any perceptual disturbances. He felt overwhelmed by financial problems at the time. On mental status examination, he seemed depressed, which appeared normal given his pain and feeling overwhelmed by stressors and health problems. He also had slight irritability and slightly tense speech, but was otherwise unremarkable. In April 2011, he reported significant mood swings and denied suicidal thoughts. On mental status evaluation, he looked stressed and disheveled, but seemed to have more hope for the future despite his pain. Later that month, he denied any current suicidal ideations or plans but reported fleeting suicidal thoughts at night, indicating he "would be better off dead by putting a gun to my head" but would never do it. He said he slept three or four hours nightly and had poor appetite with fifteen pounds of weight loss since December. He said his mood was "up and down" but denied any perceptual disturbances. He said he felt overwhelmed with his VA claim and stressed about finances. On mental status examination, he reported being depressed and overwhelmed with his current medical and psychosocial stressors. The examiner felt this was appropriate. However, he was otherwise largely unremarkable. A third April 2011 record shows he continued to feel depressed but expressed hope for the future. On mental status examination, mood and affect were mildly dysphoric but he denied suicidal ideation. Concentration remained difficult and he continued to complain of chronic pain, but he was otherwise unremarkable. A May 2011 statement indicates pain from his service-connected neck disability interfered with his concentration. Medical records that month show he denied any suicidal or homicidal ideations or plans at the time and felt he was "doing better." He said his mood was level and he was not taking his anti-depressant medications because they made him "too dopey." He denied any hallucinations or delusions and said he was trying to keep himself busy so he does not become more depressed. A mental status examination was largely unremarkable, though he still had depression (despite "managing" it), sleep difficulty, and appetite disturbances. In July 2011, he continued to report chronic pain and was provided the opportunity to “ventilate” and process his feelings. On mental status examination, his mood and affect were dysphoric and he continued to have fleeting suicidal thoughts, but reportedly would not act on them. Thoughts were normal, eye contact was poor, speech was normal, and appearance was neat and clean. In June 2012, the Veteran said that severe headaches caused him to get angry and hostile and left him “unable to concentrate or read.” Medical records that month show he complained of severe headaches that caused anger and hostility and left him "unable to concentrate or read." A November 2012 Beck Depression Inventory score (46) indicated severe depression. The record notes severe symptoms including pessimism, crying, past failure, agitation, loss of interest, loss of energy, irritability, concentration difficulty, tiredness or fatigue, and loss of interest in sex. Moderate symptoms included sadness, self-criticalness, indecisiveness, worthlessness, and reduced appetite and sleep. Mild symptoms included loss of pleasure, guilty feelings, self-dislike, and suicidal thoughts or wishes. On March 2013 VA examination, the examiner diagnosed “pain disorder associated with both psychological factors and status post anterior C5-C7 discectomy” and chronic adjustment disorder with mixed anxiety and depressed mood. These diagnoses could not be differentiated from one another in terms of overall impairment (occupational and social impairment with reduced reliability and productivity) because they “appear to vary together and have significant symptom overlap and both are viewed as associated with his service-connected medical condition.” The Veteran’s personal history describes himself as “unhappy and miserable,” noting he used to be more active with friends (seeing them daily or every other day) before a November 2012 spinal fusion. However, he maintained contact and “last saw one the other day.” He described depression and anxiety after losing his job in April 2010. On a November 2010 psychiatric assessment, he was diagnosed with a single episode of moderate Major Depressive Disorder, Anxiety Disorder NOS and Panic Disorder without agoraphobia. The provider at the time noted no history of those diagnoses. The VA examiner noted the mental residual functional assessment the following month (described in more detail above). The examiner noted no mention of post-service mental health problems until 2010, when he was seen by a psychiatrist from November 28, 2010 to May 6, 2011 and initially assessed with Depressive Disorder NOS, though “there were rule outs for Bipolar Disorder and depression secondary to his medical condition.” He was also diagnosed with “[posttraumatic stress disorder (PTSD)] childhood type” and “Bipolar Disorder NOS” with “chronic pain syndrome.” His emotional distress at the time was “related to not being able to work due to chronic pain.” The VA examiner also noted the aforementioned November 2012 psychological testing that found “severe” depression and anxiety with problems sleeping, irritability, marked loss of interest, decreased social interactions, and concentration problems due to pain. On mental status examination, he was irritable and reported marked loss of interest, decreased social interaction, and concentration problems due to pain, but denied any abnormal ideation. He reported trouble maintaining sleep even with medication and said he got only four hours of broken sleep per night due to pain that kept him tossing and turning. He also reported worrying and feeling overwhelmed by anxiety over whether he would hurt himself or lose his physical abilities due to his service-connected condition and that “situational stressors tend to increase his perceived level of pain, especially with regard to headache pain.” He also had irritability during headaches with “verbalized anger and resentment persistent over 20 years as to the reason for his physical disability and his problems accessing service and compensation associated with the medical condition.” Thoughts were normal, however, and free of perceptual disturbance. Attention and concentration were unimpaired on serial seven subtractions and mental fluency testing. Orientation was intact and abstract reasoning was unimpaired. There was mild reduction in recent memory for words noted. Hygiene and appearance were normal and insight and judgment were not impaired. Symptoms noted on examination included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In June 2014, the Veteran explicitly argued that his service-connected psychiatric disability should be rated as 70 percent disabling. September 2018 records show the Veteran was hopeful that surgery would help his pain and denied any abnormal ideation. He continued to have unresolved grief from his wife’s death, other loss, and functional loss due to pain, as well as associated fear. A statement later that month indicates he thought about suicide but didn’t think he had the “guts to do it.” He said he sometimes went to bed thinking “it would be okay if [he] didn’t wake up the next morning.” He also sometimes thought “everyone would be better off if [he] wasn’t around.” In addition, he endorsed symptoms of hypervigilance and avoidance, noting he checked the back door five or six times a night, didn’t like to be in crowds, worried about being in danger in public, and had to force himself to go grocery shopping. He also had difficulty trusting other people and felt depressed half the time in addition to being “desperate and despondent.” In addition, he reported a loss of interest in activities he used to enjoy, like being out on the water on a boat. He also endorsed feeling disoriented to time, noting he would “wake up and not know what day it is.” Moreover, he said he didn’t shower daily, noting that he had a hot tub and felt this was sufficient (though he would wash his hair in the kitchen sink). He also didn’t brush his teeth every day and endorsed difficulty adapting to stressful circumstances. As an example, he noted that his hot water heater broke and he “freaked out because [he] did not know how to get it done,” leading to him spending two days stressing about it and without hot water before finally going to the store to ask about installing a hot water heater. He denied any social life outside occasionally eating out with his “one friend” and keeping in touch with his brother, sister, and daughter. In September 2018, he said he was struggling with some psychosocial strain. He denied abnormal ideations and was forward thinking regarding his appointments. In October 2018, he was doing fairly well and endorsed good and bad days emotionally. He felt his faith was a support system and prayed frequently. He denied any residual intrusive ideations, nightmares, or anxiety-based symptoms. He also denied any abnormal ideation and was forward thinking about his future appointments and updates to his home, as well as seeing his grandchildren. He engaged in less "all [or] nothing, overgeneralizing thinking" and his affect was brighter than the prior session. Thoughts appeared to be within reasonable levels in the context of the conversation. Later that month, he complained of irritability, sadness, and anxiety and related this to the loss of his wife, who would typically be around to comfort him. He talked about some of his unresolved guilt and how it related to ownership of finding ways to comfort himself and disruption of mood. He was able to increase his insight in those matters. He denied abnormal ideation and was forward thinking. On October 30, 2018 evaluation, he was struggling with unresolved grief that was impacting his chronic pain cycle and postoperative pain. He was also struggling with adjusting to his activities and emotionally accepting his functional difficulties associated with continued postoperative limitations. However, he denied any suicidal or homicidal ideation In November 2018, the Veteran's affect was brighter, thoughts were goal-oriented, and thought content was focused on past medical trauma without abnormal ideation. He was forward thinking regarding a remodel of his house. Later that month, his affect again appeared brighter and he was slightly more alert. He denied any abnormal ideations. In December 2018, he said he was doing "ok" but had not been engaging more socially. However, he said he was "content" and denied any abnormal ideation. In January 2019, he denied abnormal ideation and was forward thinking about taking care of his granddaughter. In May 2019, the Veteran argued that his symptoms have more nearly approximated occupational and social impairment consistent with a 70 percent disability rating since at least September 21, 2012. He pointed to the several notations of suicidal thoughts in the record between October 2010 and April 2011 as well as in a more recent September 2018 statement (all described in more detail above). He also argued that March 15, 2011 notes (showing his mind is “always racing and he is either high or low [but] never in between”), November 5, 2012 records (showing a score of 44 on the Beck Anxiety Index and 46 on the Beck Depression Inventory qualifying both as “severe”), a March 7, 2013 VA examination report (showing he felt overwhelmed by anxiety about whether he might hurt himself or lose his physical abilities due to service-connected conditions), November 15, 2010 record (noting “panic attacks with sudden onset of intense fear, shortness of breath, a sense of choking, heart racing, chest pounding, trembling, and sweating”), and September 24, 2018 reports (that he checks the back door five or six times at night to see if it is locked, worries he is in danger when in public, tends to stay home if he needs to go grocery shopping and has to force himself to go, is depressed half the time and feels desperate and despondent, and had lost interest in activities he used to enjoy) as evidence of near-continuous panic or depression affecting the ability to function independently. He also argued that March 2014 and November 2010 records (showing constant anger) are evidence of impaired impulse control, that his September 2018 statement (indicating he didn’t shower or brush his teeth every day) is evidence that he neglects his personal appearance and hygiene, that the March 2013 examination explicitly shows difficulty adapting to stressful circumstances, and that a March 15, 2011 note (indicating little social support), the March 2013 VA examiner’s notation of social isolation, October, November, and December 2010 records (noting social withdrawal), and September 2018 statement (indicating no social life other than occasionally eating out with his one friend) are evidence of inability to establish and maintain effective relationships. October 2019 records show that depression screening was negative over the prior two weeks, but a primary suicide screening test was positive for suicide risk. At the time, the Veteran reported thinking he would be better off dead or of hurting himself in some way on several days in the past two weeks. On February 2020 VA examination, the examiner diagnosed PTSD (in relation to childhood sexual abuse he disclosed), somatic symptom disorder (associated with psychological factors and a neck disability), and adjustment disorder with mixed anxiety and depressed mood (in relation to his response to his back and neck surgeries with persisting pain as well as the death of his wife in 2012). She indicated there was “too much symptom overlap among the disorders to be able to accurately differentiate what symptoms are attributable to each...without resorting to speculation” before opining that the disorders caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. This impairment could not be separated between the diagnoses because the “appear to vary together and have significant symptom overlap and are viewed as associated with his service-connected medical condition.” The Veteran indicated that he had seen a pain psychologist from October 2018 to January 2019 but does not currently see a therapist or psychiatrist. He also reported an addiction to morphine that he “weened himself off” three years prior. The examiner noted symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation. She observed that he arrived on time and was dressed casually and groomed appropriately. His affect was flat with “very anxious, near agitated” mood and expressed suspicion about why he was being evaluated and the VA’s motives. He became tearful discussing his wife’s death and his childhood abuse. Speech was rapid. He also reported passive suicidal ideation without intent or plan, but denied homicidal ideation. The examiner indicated that, given he did not report any sexual trauma to the prior March 2013 VA examiner, there was no indication of a PTSD diagnosis at the time, but “[a]voiding disclosure of childhood trauma...is common with...PTSD.” 1. A more than a 50 percent rating for service-connected adjustment disorder with depressed mood, anxiety, and pain disorder (psychiatric disability) prior to May 2, 2019 A review of the record shows the Veteran’s service-connected adjustment disorder with depressed mood (which was first diagnosed in October 2010) has been associated with explicit complaints of suicidal ideation (albeit without plan or intent) in October, November, and December 2010. Specifically, the Veteran said he thought about shooting himself at night. Subsequent records in March, April, and July 2011 show continued “fleeting” suicidal thoughts and November 2012 records note “severe depression” with “suicidal thoughts or wishes.” Moreover, his mental health treatment records and mental status examinations over the years show a consistent pattern of intermittent problems with mood (e.g., depression, irritability, anxiety) and thinking (e.g., concentration, attention, focus , memory) in addition to suicidal ideation, which by itself would, on a practical basis, affect multiple areas of functioning (such as judgment, work capacity, thinking, mood, etc.). See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (holding that under certain circumstances, suicidal ideation alone may cause deficiencies in most areas of functioning). The Board notes that it is difficult to argue that these factors, together with others such as poor sleep (as low as two or three hours per night), or occasional tense or altered speech, would not cause deficiencies in work capacity as well, particularly given a December 2010 mental residual functional capacity report that indicates his psychiatric symptoms likely precluded working on tasks requiring “rapid pace or extended concentration” and the Veteran himself at the time said he had turned down a job because he didn’t feel he had sufficient concentration to do it. Consequently, the Board finds the evidence is at least in relative equipoise as to whether the Veteran’s psychiatric presentation was consistent with occupational and social impairment with deficiencies in most areas of functioning as contemplated by a higher 70 percent rating throughout this period on appeal. 2. More than a 70 percent rating for service-connected psychiatric disability at any time. What remains for consideration is whether the evidence further supports a still higher 100 percent rating at any time during the period on appeal. However, while the Board concedes and is sympathetic to the fact that the Veteran has severe symptoms and impairment that are significantly disabling and interfere with normal functioning, the evidence indicates that they are not comparable to the singularly high threshold presented by the higher 100 percent rating criteria at any time during the periods on appeal. In so finding, the Board acknowledges that the Veteran has had a history of problems with mood, thinking, judgment, and occupational functioning in the records noted above (including his history of passive suicidal ideation) that has at times been expressly evaluated as severe, and that he has experienced occasional difficulty communicating due to altered speech, significant social withdrawal, difficulty adapting to stressful circumstances, neglect of some personal hygiene, and near-continuous panic or depression. However, while these problems resemble certain types of symptoms or impairment contemplated by the criteria for a higher 100 percent rating (e.g., impairment of thought or communication, interference with routine daily functions, social impairment, risk of self-harm), they do not also resemble the severity or frequency reflected in those criteria. For example, the 100 percent criteria specifically contemplate symptoms that are grossly or persistently disabling or that are otherwise consistent with total functional loss (i.e., gross impairment in thought processes or communication, persistent danger of self-harm, intermittent inability to perform routine functions). In contrast, the Veteran’s symptoms and impairment shown in both his medical records and statements supporting this appeal falls short of presenting such a dire disability picture. Notably, even with such severe impairments as he showed on the most recent February 2020 VA examination, it appears from the report that he was able to communicate an extensive, detailed personal and medical history to the examiner and describe his various stressors, symptoms, and difficulties in significant detail. Similarly, although his suicidal ideation is highly concerning, he has never communicated an intent or plan and has consistently endorsed mitigating or protective factors (e.g., family) that would preclude acting on those ideas. There is certainly no evidence or allegation suggesting he has ever been in persistent danger of self-harm. Likewise, his more recent reports indicating he does not brush his teeth or shower every day attribute this partially to the fact that he has a hot tub and feels this is “good enough,” and reports that he does wash his hair in the sink. This does not suggest an emotional or mental inability to perform those activities and, crucially, the Veteran himself reports that he is able to maintain minimal personal hygiene (because he does was his hair in the sink), a crucial distinction made in the higher rating criteria that speaks to the requisite severity. Moreover, while it is deeply unfortunate that the Veteran’s social interactions have been so limited that, in September 2018, he reported only occasionally eating out with one friend and keeping in touch with his family, this minimal amount of social functioning itself shows he is not totally socially impaired (as required by the higher rating criteria). In light of the above, the Board finds the preponderance of the evidence is unfortunately against finding that the criteria for a higher 100 percent rating are met at any point during the periods on appeal. To that extent, the benefit of the doubt rule does not apply and the appeal must be denied. [CONTINUED ON NEXT PAGE] However, to the extent that the evidence is at least in relative equipoise as to whether his psychiatric disability produced symptoms and impairment that likely caused deficiencies in most areas of functioning throughout the entire period prior to May 2, 2019, the Board resolves all remaining doubt in his favor and grants the appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.