Citation Nr: 21004094 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 16-15 859 DATE: January 26, 2021 ORDER An initial 70 percent disability rating, outside of a temporary total rating period from April 20, 2017 to May 31, 2017, for an acquired psychiatric condition, including anxiety disorder, is granted. FINDING OF FACT The Veteran’s acquired psychiatric condition, including anxiety disorder, results in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial 70 percent disability rating, outside of the temporary total rating period from April 20, 2017 to May 31, 2017, for an acquired psychiatric condition, including anxiety disorder, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, DC 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to January 1994 and from June 2009 to June 2010. The case is on appeal from a May 2013 rating decision. In a September 2019 rating decision, the RO increased the Veteran’s psychiatric disability rating to 70 percent as of July 31, 2019. This staged rating does not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available, and as a claimant is presumed to be seeking the maximum available rating for disabilities, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 30 percent prior to July 31, 2019, outside of a temporary total rating period from April 20, 2017 to May 31, 2017, and in excess of 70 thereafter, for acquired psychiatric condition including anxiety disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Under 38 C.F.R. § 4.130, major depression is rated pursuant to the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. A 30 percent rating is assigned 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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 evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation 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 ability 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. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that his service-connected psychiatric condition is more than 30 percent disabling. In June 2014, the Veteran submitted a statement from his wife. She reported being separated from the Veteran for 3 years due to concern for her safety. She also reported that, since he returned from a tour of duty in Afghanistan, he has become depressed, aggressive, and short tempered. She stated that he is quick to escalate and exaggerate conflict, is unable to sleep due to restlessness and nightmares, and is depressed and withdrawn. The Veteran also submitted a letter from a former supervisor. The supervisor reported that the Veteran is easily started and quick to aggression. He also reported that he had to terminate the Veteran’s employment due to these behaviors. In July 2015, the Veteran submitted a letter from his girlfriend at that time. She reported that he experiences overwhelming anxiety, limited ability to concentrate, and misses work due to being unable to sleep. She also reported that he sometimes refuses to shower for up to a week at a time. The Veteran was first afforded a VA examination in regard to this claim in July 2010. The Veteran reported having a good relationship with his son, but a poor relationship with his wife and being easily irritated by people. He also reported being depressed and feeling worthless and helpless. He further reported experiencing anxiety, sleep impairment, and sleeping with weapons. The examiner reported that the Veteran has a history of being aggressive and confrontational. She also reported that his psychiatric symptoms resulted in deficiencies in thinking and family relations. She further reported symptoms of ritualized behavior, anxiety, and depressed mood that result in difficulty finding work. The Veteran was afforded another VA psychiatric examination in December 2010. The Veteran reported being married with a 2 year old son, but having few friends. He also reported daily symptoms resulting in impaired social functioning, hypervigilance, and sleep impairment. The examiner reported symptoms of irritability, poor social interaction, intrusive thoughts, hypervigilance, and mild memory impairment. The Veteran was examined in regard to this claim again in September 2012. He reported having 2 or 3 good friends and a girlfriend. The examiner found that the Veteran’s psychiatric conditions result in hypervigilance, avoidance, nightmares, irritability and aggressiveness indicated by fighting and angry outbursts, difficulty in establishing and maintaining effective work and social relationships, and disturbance of motivation and mood. The Veteran’s VA treatment records show that he was in a psychiatric hospital from April 20, 2017 to May 15, 2017, following an arrest for public intoxication and resisting law enforcement. The Veteran underwent another psychiatric examination in July 2019. He reported living alone, but having a friend stay with him a few days per week for commuting reasons. He also reported having a good relationship with his son, family members, and friends. He further reported working as a manger, but losing his last job due to an outburst of anger. The examiner reported psychiatric symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment and impulse control, difficulty to establishing and maintaining effective relationships, disturbances of motivation and mood, and panic attacks more than once per week. After engaging in a holistic analysis assessing the severity, frequency, and duration of the signs and symptoms of the Veteran’s major depression, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that an initial rating of 70 percent, but no higher, is not warranted. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan v. Principi, 16 Vet. App. 436 442 (2002). In this regard, the psychiatric examinations of record all show the presence of symptoms indicative of a 70 percent rating, including obsessional rituals which interfere with routine activities, impaired impulse control, and difficulty in adapting to stressful circumstances. These findings are supported by lay statements that indicate the presence of these symptoms as well as an inability to establish and maintain effective relationships, neglect of appearance and hygiene, and near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. Furthermore, the Veteran was hospitalized due to psychiatric symptoms. However, he has not experienced total occupational and social impairment. In this regard, he has not been found to experience psychiatric impairment resulting in total occupational and social impairment. In addition, he has consistently reported having a good relationship with his son and friends throughout the appeal period. Therefore, the Veteran’s psychiatric disability has not resulted in total social impairment outside of the period of a temporary total rating. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s psychiatric disability results in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment outside of the temporary total rating period. However, the benefit of the doubt doctrine is not further applicable, and a rating in excess of 70 percent is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.