Citation Nr: 21004010 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-19 245 DATE: January 25, 2021 ORDER An initial rating in excess of 50 percent for adjustment disorder with anxiety and depression (acquired psychiatric disability) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for an acquired psychiatric disability 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 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to February 1972. This appeal comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the Veteran’s claim for additional development. In August 2019, the Board denied the Veteran’s claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (JMPR) and, in a July 2020 Court Order, the Court granted the JMPR, vacating the Board’s August 2019 decision and remanding the matter for compliance with the JMPR. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disability. The Veteran is seeking an initial rating in excess of 50 percent for his service-connected adjustment disorder with anxiety and depression. He has not provided specific allegations as to why his acquired psychiatric disability warrants a rating in excess of 50 percent. During his multiple evaluations, he reported anxiety, mood swings, frustration and feelings of hopelessness. The issue here is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran’s symptoms do not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximate the symptoms associated with a 50 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 50 percent rating. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA treatment records, the December 2013 VA examination, November 2016 private evaluation, September 2018 private evaluation, June 2019 VA examination, the October 2019 VA addendum opinion, and the Veteran’s lay statements during evaluations show that the Veteran’s acquired psychiatric disability was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood). He also had symptoms that are not listed with a specific rating, such as feelings of guilt, restlessness, decreased energy and fatigue, problems with concentration, persistent negative emotional state, hopelessness, social withdrawal, irritability and deterioration in work-like setting. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms of social withdrawal and irritability more closely approximate the symptoms contemplated by the 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent or higher ratings. Also, the Board finds the severity, frequency, and duration of the Veteran’s other unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent or higher ratings. In this regard, feelings of guilt, restlessness, decreased energy and fatigue, problems with concentration, persistent negative emotional state, hopelessness, social withdrawal, irritability, and deterioration in work-like setting appear similar to disturbances of motivation and mood, impaired judgment and difficulty in establishing and maintaining effective relationships, which are contemplated by the assigned 50 percent rating. The level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations at the November 2016 private evaluation, September 2018 private evaluation, June 2019 VA examination and October 2019 VA addendum reflect that the Veteran was fully oriented with intact memory, good judgment, clear speech, appropriate or “depressed” appearance, no impairment of thought processes or communication; no delusions/hallucinations; no inappropriate behavior; no suicidal/homicidal thoughts; and no inability to maintain minimal hygiene. The November 2016 private evaluation indicated blunted affect, but provided that such was not labile. The June 2019 VA examination noted that the Veteran’s mood was more tense and irritable when speaking about relationship stressors with his wife, and that his affect was stable and congruent with mood. While some interpersonal conflict was noted (the Veteran’s wife reported rage from the Veteran toward her expressed as him bumping or elbowing her), the Veteran acknowledged that he was close with his brother, who was his closest friend, had other friends, and was also close with his grandson and son. See C&P Exam (June 2019). While the November 2016 private evaluation noted deterioration in “work-like setting,” the Veteran continued to work assisting a pastor in a local church twice a week and was able to engage in work related activity consistently throughout as noted at the June 2019 VA examination. Previously, he worked as a pastor at the same church for 36 years and took temporary leave due to his knee condition. See VA Examination (January 2014). While September 2018 private evaluation notes the Veteran’s wife’s reports of the Veteran’s enraged behavior toward her that is similar to impaired impulse control contemplated by a 70 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The June 2019 VA examination noted that the Veteran remarried in 2014 and remained married. The Veteran’s June 2019 VA examination also noted that the Veteran and his wife participated in couples counseling. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent or lower rating. He remained independent in all activities of daily living, denied suicidal and homicidal ideation and manifested no evidence of cognitive dysfunction throughout the appeal period. It is noteworthy that the evaluations after the initial evaluation – November 2018, June 2019 and October 2019 – explicitly concluded that the Veteran’s condition had not changed since the initial evaluation in January 2014. The November 2016 private evaluation, while noting “deterioration in work-like setting,” also noted that the Veteran denied symptoms of anxiety. See Medical Treatment Record - Non-Government Facility (December 2016). The Veteran’s VA treatment records dated March 2014, September 2015 and October 2016 also indicate that the Veteran denied anxiety and depression. See CAPRI (February 2016), (December 2017). Both findings from the November 2016 private evaluation are incongruent with the rest of the evaluations and treatment records. Significantly, the Veteran has not participated in any mental health treatment since February 2015, when he denied excessive anxiety symptoms, and has not required consistent use of mental health medications. See CAPRI (February 2016). The Board acknowledges the Veteran’s reports of anxiety, decreased energy, mood disturbance and social withdrawal. However, these symptoms are fully contemplated by the currently assigned 50 percent rating as discussed above and are not shown by either the lay or medical evidence to more nearly reflect the criteria for a 70 percent or higher disability rating. Both the lay and medical evidence are probative in this matter. However, whether a disability meets the schedular criteria for the assignment of a higher rating is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believed that he met the criteria for higher disability rating, his complaints and the medical findings do not meet the schedular requirements for a higher rating than assigned, as explained and discussed above. There is no basis to stage the rating. See Hart, supra (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson, supra. In summary, the severity, frequency, and/or duration of symptoms, individually or collectively, shown by the record do not more nearly reflect the type contemplated by the schedular criteria for an initial evaluation in excess of 50 percent. Accordingly, the claim is denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.