Citation Nr: 21001879 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-03 358 DATE: January 12, 2021 ORDER A rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and depressive disorder, not otherwise specified (NOS) (hereinafter, “psychiatric disability”) from September 27, 2012 is denied. FINDING OF FACT During the period on appeal from September 27, 2012, the Veteran’s service-connected psychiatric disability has not been manifested by symptoms causative of total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for psychiatric disability from September 27, 2012 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 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1987 to July 1991. He also had service in the Army National Guard between July 1991 and December 1999. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C. The AMC granted service connection and a 50 percent rating for PTSD and depressive disorder NOS, effective May 4, 2007. After remanding the case for additional development in October 2017, the Board, in a February 2018 decision, granted a 70 percent rating for the Veteran’s psychiatric disability for the period on appeal prior to September 27, 2012, and denied a rating in excess of 50 percent thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 memorandum decision, the Court vacated the Board’s February 2018 decision insofar as it had denied a rating in excess of 50 percent for the Veteran’s psychiatric disability from September 27, 2012 and remanded that matter for readjudication. The matter of his entitlement to a rating in excess of 70 percent prior to September 27, 2012 was dismissed. In October 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for further development. In June 2020, after taking further action, the AOJ increased the rating for the Veteran’s psychiatric disability to 70 percent, effective December 6, 2019. In September 2020, the AOJ issued a supplemental statement of the case (SSOC) that denied a rating in excess of 50 percent for the psychiatric disability from September 27, 2012 to December 5, 2019, and in excess of 70 percent thereafter. The Appeals Modernization Act (AMA) allows VA claimants to opt into the modernized review system by requesting review of a SSOC issued on or after February 19, 2019, if the opt-in is received within one year of the date of the notification of the underlying rating decision, or 60 days from the issuance of the SSOC, whichever is later. 38 C.F.R. § 19.2(d)(2). Here, after receiving the September 2020 SSOC, the Veteran elected to opt into the modernized review system by filing a VA Form 20-0996 (Decision Review Request: Higher-Level Review) in November 2020 with respect to the issue of his entitlement to a 70 percent rating for the period from September 27, 2012 to December 5, 2019 (characterized in terms of his entitlement to an “earlier effective date” for the 70 percent rating). In a November 2020 decision on Higher-Level Review, the AOJ confirmed its decision to deny a 70 percent rating for the Veteran’s psychiatric disability for the period from September 27, 2012 to December 5, 2019 (also characterized in terms entitlement to an “earlier effective date” for the 70 percent rating). Thus far, the Veteran has not appealed that decision to the Board. As such, the Board has no present jurisdiction to consider the Veteran’s entitlement to a 70 percent rating for that period. That said, the Veteran is generally presumed to be seeking the highest possible rating for his disability. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, and because his AMA opt-in and the subsequent decision on Higher-Level Review were limited as described above, it would appear that the matter of his entitlement to a 100 percent rating for his psychiatric disability is still before the Board under the legacy system. In light of the procedural history, the Board’s present decision is limited to that issue alone. As a final matter, the Board notes that in November 2017, the Veteran revoked the power of attorney he had executed in favor of a prior representative. He is current proceeding pro se. Entitlement to a rating in excess of 70 percent for psychiatric disability from September 27, 2012 The Veteran’s psychiatric disability has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, to include PTSD and depressive disorder, a 70 percent evaluation is warranted where 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; 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is 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; and memory loss for names of close relatives, own occupation, or own name. When rating psychiatric impairment, 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 is to 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability arising from a mental disorder, the rating agency is to consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The symptoms listed in the rating criteria for psychiatric disorders are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The Board will consider whether the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and, if so, the equivalent rating will be assigned. Id. A Veteran may only qualify for a given disability rating 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). To qualify for a particular disability rating, 38 C.F.R. § 4.130 requires “not only the presence of certain symptoms[‘] but also that those symptoms have caused occupational and social impairment” associated with the requested disability rating. Id. at 117; 38 C.F.R. § 4.130, Diagnostic Code 9411. As noted in Vazquez-Claudio, the Federal Circuit explained that, although a Veteran’s symptoms are the primary consideration under § 4.130, “the regulation also requires an ultimate factual conclusion as to the Veteran’s level of [occupational and social] impairment.” 713 F.3d at 118 (emphasis added). Significantly, § 4.130 requires total occupational and social impairment to warrant a 100 percent rating. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In September 2012, the Veteran underwent a VA psychiatric examination pursuant to an August 2012 Board decision. He reported irritability, marital discord, losing his temper at work and home, and worsening nervousness. September 2012 VA PTSD examination report. He also stated that he only had one friend, with whom he met approximately twice per week. Id. He stated that he had worked full-time in the tire industry for the 12 years preceding the examination. Id. He described losing interest in things and not having any hobbies. Id. The examiner noted symptoms of disturbing dreams, detachment or estrangement from people, markedly limited participation in activities, being uncomfortable around and avoiding crowds, exaggerated startle reaction, difficulty sleeping, irritability, limited enjoyment, suicidal ideations, decreased energy, negative feelings about himself, and pessimistic thoughts about his future. The examiner further noted that the appellant was polite but subdued in his interaction; that his speech was slow in rate and soft in tone; that his responses were limited, and that he appeared to have difficulty with giving precise answers to questions. Id. His affect was constricted, almost blunted, and his mood was “stressed and frustrated.” Id. The appellant denied hallucinations, and there was no evidence of delusions. Id. However, he reported occasionally having suicidal thoughts of passive nature, such as wondering whether life is worth living, as well as occasionally having thoughts of wanting to hurt coworkers. Id. He had mild to moderate difficulty with short term memory. Id. The examiner diagnosed PTSD and opined that appellant 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 also determined that appellant had difficulty in establishing and maintaining effective work and social relationships. Id. In November 2016, the appellant underwent another VA examination. He reported to the examiner that he had a good relationship with his parents, was very close to his brother, had been married for 20 years, and had a very close relationship with his wife, whom he referred to as his “support system.” November 2016 PTSD examination. He also reported that “he currently works for [a tire company] and that he has worked there for over 15 years in manual labor.” Id. He reported symptoms of depressed mood, guilty feelings, fatigue, motivational swings, difficulty concentrating, irritability and anger, anxiety, feelings of hopelessness and worthlessness, crying spells, and memory problems. Id. He also reported that he sometimes had suicidal ideation, and he denied thoughts of wanting to hurt anyone. Id. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, mild memory loss, and disturbance of motivation and mood. Id. He concluded that, in his opinion, the appellant exhibited occupational and social impairment with reduced reliability and productivity. Id. H.J., M.D., a private provider, authored a December 2019 report that detailed the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective social relationships; difficulty adapting to stressful circumstances, including a worklike setting; and inability to establish and maintain effective relationships. Another private medical opinion was provided by L.G., MA, LPA and A.F., PhD in January 2020. The team of providers included the psychological associate who had worked with the Veteran since 2006. In its October 2019 remand of this case, the Board asked for treatment notes from L.G. Her colleague explained that the medical opinion authored in January 2020 was comprehensive and that there were no additional records for the patient. See March 2020 fax correspondence and telephone communication with Dr. A.F. The January report by L.G. and Dr. A.F. illustrates the Veteran’s ongoing struggle with mood swings, angry outbursts, worsening nightmares, social isolation, memory difficulty, and suspicion of others. See January 2020 report authored by L.G. and Dr. A.F. In January 2020, the Veteran also underwent a VA PTSD examination. Findings from that examination led the examiner to characterize the Veteran’s level of disability as causative of “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” January 2020 PTSD examination report. Specific symptoms were noted to include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; difficulty understanding complex demands; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control. The examiner noted that the Veteran had had suicidal ideation approximately four times per year; therefore, he presented an increased but not currently imminent risk. In August 2020, L.G. authored follow-up correspondence meant to detail changes in the Veteran’s psychiatric disability symptoms. She confirmed diagnoses of major depressive disorder and PTSD. She also explained that the Veteran continued to experience significant disturbances in “all areas of his life” due to his depressive disorder. The Veteran reported difficulty with coworkers along with difficulty controlling his temper. He endorsed symptoms of irritability at work and at home. Finally, the Board notes the RO’s attempts to contact the Veteran’s employer pursuant to the Board’s October 2019 remand directive. See August 2020 VA development letter. The Veteran did not respond with the necessary contact information. Following a thorough review of the record, the Board finds that the preponderance of the evidence is against a finding of total and occupational impairment that would warrant a 100 percent rating for psychiatric disability. There is no indication that the Veteran has suffered the most severe iterations of a psychiatric disability that would support a finding of total occupational and social impairment. He has not been found to suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; disorientation to time or place; severe memory loss (such as memory loss for the names of close relatives, his own occupation, or his own name); or symptoms of similar severity, duration, and frequency. Moreover, he has maintained a long-term marriage; continues to support himself through participation in psychotherapy (although he has declined psychopharmacological treatment); and has denied any suicidal or homicidal ideation rising to the level of active intent or plan. Considering the totality of the evidence, the Board finds that a total (100 percent) rating is not warranted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.