Citation Nr: 21068746 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-12 517A DATE: November 12, 2021 ORDER Entitlement to increases in the (30 percent prior to December 1, 2015, and 70 percent from that date to January 19, 2021) staged ratings assigned for a psychiatric disability is denied. FINDING OF FACT Prior to December 1, 2015, the Veteran's psychiatric disability is not shown to have resulted in impairment greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity was not shown; from that date to January 19, 2021, the psychiatric disability is not shown to have been manifested by symptoms productive of total occupational and social impairment. CONCLUSION OF LAW Ratings for the Veteran's psychiatric disability in excess of 30 percent prior to December 1, 2015, and in excess of 70 percent from that date to January 19, 2021, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.130, Diagnostic Code (Code) 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1997 to September 2001. This matter is before the Board on appeal from a December 2010 Department of Veterans Affairs (VA) rating decision, which continued a 30 percent rating for the psychiatric disability. A February 2016 rating decision increased the rating to 70 percent, effective December 1, 2015. A March 2021 rating decision increased the rating further (to 100 percent), effective January 19, 2021. In April 2021, the matter was remanded for additional development. [A subsequent rating decision (under the AMA appeal system) awarded service connection for a cardiac disability and awarded special monthly compensation benefits, entitlement to which was not raised by the record prior to the award of service connection for cardiomyopathy).] Entitlement to increases in the (30 percent prior to December 1, 2015, and 70 percent from that date to January 19, 2021) staged ratings assigned for a psychiatric disability is denied. In a September 2010 medical opinion letter, a psychiatry resident who was treating the Veteran noted that he exercised regularly and lived as active a life as possible for him despite his physical limitations. The provider opined that the Veteran views himself as somehow weak in not being able to achieve the things he would be capable of if not for his physical disabilities, and he struggles with depression which is at times severe enough for him to retreat from those around him in isolation. The provider opined that the Veteran has difficulty in establishing close, trusting relationships and spends much of his time withdrawn from the world. The provider noted that the Veteran reported daily nightmares and hypervigilance. On October 2010 VA examination, the examiner noted that the Veteran had been involved in an anger management group since July 2010. He reported that he was not interested in psychotropic medications and was being set up for talk therapy. He reported that his last full-time job was in July 2009 teaching at a technical college, which ended because he had so many VA appointments in addition to "personality conflicts". He stated that he was not working because he was focused on improving his health. He reported feeling exhausted, sick, and in pain every day, which made working very difficult. He reported he was living with his girlfriend of about one year, and that he had good relationships with her, and his mother, father, and sister. He indicated that he did not have friends, but had acquaintances with whom he occasionally got together. He enjoyed riding his motorcycle and was remodeling his house; he also enjoyed flying gas-powered RC planes and reading. On mental status examination, the Veteran was cleanly and appropriately dressed. He was alert and oriented with psychomotor activity within normal limits. He had good eye contact and communication. He was talkative and his speech was somewhat pressured. His mood was "not good, depressed" though he appeared mildly irritable, and his affect was broad and appropriate. His thought process and thought content were unremarkable, and there were no signs of delusions or hallucinations. He denied suicidal or homicidal ideation. No inappropriate behavior was displayed. He reported having been depressed most days for a while, he had a lot of anxiety and frequent nightmares, and his sleep was impaired. He denied any short-term memory problems but reported that his attention and concentration were slightly reduced. The examiner opined that the Veteran's symptoms appeared to be having a moderate impact on his social and occupational functioning. Based on this evidence, the December 2010 rating decision on appeal continued a 30 percent rating for the psychiatric disability. On February 2012 VA treatment, the Veteran reported having some anxiety and nightmares that recur daily. His core psychiatric symptoms were poor sleep, anger, and agitation. He denied suicidal or homicidal ideation. On mental status examination, he was cooperative with intermittent eye contact but easily irritable. His speech was regular. His thought process was linear and goal oriented. He had no delusions or hallucinations. He was alert and fully oriented, and his insight and judgment were fair/intact. On October 2012 VA treatment, the Veteran reported that he is always anxious and does not go out in public. He reported having panic attacks at least weekly. He reported interrupted sleep, low mood, and poor motivation. He denied psychotic or manic symptoms. He reported startling easily and being hypervigilant. He denied suicidal or homicidal ideation or any history of violence or drug use. He reported being self-employed and working in insurance brokerage. His leisure activities included fishing and walking. On mental status examination, there was no psychomotor agitation or retardation. The Veteran was very anxious. His grooming and hygiene were fair. He was cooperative and maintained fleeting eye contact. His speech was regular, and he was fully oriented. His attention, concentration, and memory were intact. His mood was anxious, and affect was congruent. His thought process was logical and goal-directed, and his thought content was intact. His judgment and insight were fair. He expressed interest in seeing a therapist and learning coping skills. On June 2013 VA treatment, the Veteran reported that he was "doing OK mood wise". He reported having panic attacks daily, but alleviated them with deep breathing; he was practicing meditation which helped. He reported variable motivation and impaired sleep with a few nightmares. He reported he was exercising more, and thinking positively, and that he was engaged to his girlfriend and they planned to marry the following year. He denied suicidal or homicidal ideation. On mental status examination, his grooming and hygiene were good, and there were no abnormal movements. He was cooperative and maintained fleeting eye contact. His speech was regular, and he was alert and fully oriented. His mood was depressed, and affect was broad. His thought process was logical and goal-directed and thought content was intact. His judgment and insight were fair. On December 2013 VA treatment, the Veteran reported that he was socially stable. He was talkative about working on his house and getting married the following month. He reported that his anger and impulsiveness had decreased with age. On mental status examination, he was appropriately dressed and groomed. His mood was pessimistic, and affect was bland. His speech was normal, and his thought processes were organized and rambling. He denied delusions or hallucinations, and his insight and judgment were limited/fair. On June 2014 VA treatment, the Veteran reported that he tried to be nice to people though he is not a nice person. He reported that his marriage was "ok", but he thought his wife got tired of his negativity. He continued to spend time working on his new house but had limited to no interactions with others besides his wife. He reported doing a little insurance work but was nonspecific and vague regarding how much time he spent working. He reported impaired sleep and appetite. On mental status examination, he was appropriately dressed and groomed. He had no psychomotor agitation or retardation. His mood was pessimistic and negative, but affect was euthymic. His speech was normal. His thought processes were organized, and his thought content was focused on others' imperfections and how annoyed he gets. He reported suicidal thoughts daily but had no plans; he denied homicidal ideation. He reported having a lot of paranoia but no hallucinations. His insight and judgment were limited/fair. On June 2015 VA treatment, the Veteran reported that Prozac was helping, and he used Xanax in extreme situations that triggered anxiety. He denied suicidality or homicidality. He was alert and fully oriented, and his speech was normal. His mood was neutral, and affect was full. His thought content was logical, and goal directed. His insight and judgment were intact. On December 1, 2015 VA examination, the Veteran reported depression, anxiety, panic attacks, and nightmares. He reported that he had a "pity job" at an insurance agency through his family, though he missed work frequently due to panic attacks and treatment appointments. His reported symptoms included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss; 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; and suicidal ideation. He constantly worried about getting panic attacks, symptoms of which included palpitations, trembling, feelings of choking, nausea, dizziness, heat sensations, fear of dying, paresthesias, and fear of losing his mind. On mental status examination, the Veteran experienced panic symptoms during the evaluation. He appeared dejected, angry, and anxious. He spent several minutes blaming the military, VA, and others for his mental health issues and medical concerns, and then apologized and stated that he had been treated well by various VA personnel. The examiner opined that the Veteran's diagnosed adjustment disorder with mixed anxiety and depressed mood and panic disorder resulted in occupational and social impairment with deficiencies in most areas. The examiner opined that the adjustment disorder causes anxious and depressive symptoms which negatively affect social interactions and concentration abilities; and the panic disorder causes several panic attacks daily with associated inability to socialize, reluctance to leave the house, and inability to work in a competitive job. Based on this evidence, a February 2016 rating decision increased the rating for the Veteran's psychiatric disability to 70 percent, effective December 1, 2015, the date of the VA examination showing increased symptomatology. On July 2016 VA examination, the Veteran's symptoms reported included low energy, poor concentration, feelings of hopelessness, low self-esteem, restlessness, irritability, muscle tension, sleep disturbance, and being easily fatigued. He related that his wife is really nice to him though he felt like a burden to her. He reported that she is his only social support, and that he avoids social situations and does not engage in recreational activities. The Veteran reported working part time for his father in his insurance business, as his chronic pain interferes with his ability to work. He exhibited depressed mood with agitated affect. He was fully oriented with no signs of psychosis. His eye contact, speech, and attention were unremarkable. He reported that he does not want to be alive anymore due to his chronic pain but denied having a plan to harm himself. He denied hallucinations but reported paranoid thoughts. He reported having nightmares almost nightly. His reported 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; impairment of short- and long-term memory; 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; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner opined that the Veteran's generalized anxiety disorder and persistent depressive disorder resulted in occupational and social impairment with deficiencies in most areas but not total impairment, as evidenced by his ability to maintain at least part time employment. On December 2017 VA treatment, the Veteran reported having frequent nightmares, difficulty sleeping, anxiety attacks, anhedonia, poor concentration, fatigue, and social isolation. He reported limited interpersonal relationships. He reported skateboarding and rollerblading for leisure. On mental status examination, he was pleasant, alert, and cooperative. His hygiene was adequate. His psychomotor activity was normal, and he maintained adequate eye contact. His mood was mildly anxious, and affect was within normal range. His thought processes were linear, logical, and goal-directed without psychotic content. He denied perceptual disturbances. He denied suicidal or homicidal ideations. His memory was intact, judgment was sound, insight was adequate, and he was fully oriented. On May 2018 VA treatment, the Veteran reported his most troubling symptom to be frequent nightmares. He reported avoiding crowded spaces and wanting to stay away from people as much as he can. He reported working as an insurance agent and sitting with people as he visits their homes, and that he found his work satisfying. He reported periodic passive suicidal ideation. He reported moderate depression. On mental status examination, he was clean and appropriately dressed with unremarkable psychomotor activity. His speech was unremarkable, and he had good, cooperative, communication with good eye contact. His mood was anxious and depressed. He had good attention and concentration and was fully oriented. His thought process and thought content were unremarkable. He denied homicidal or aggressive ideation. On November 2019 VA treatment, the Veteran reported that he was starting to settle in more in his new house. He reported trying to seek out activities to keep himself busy, though his physical limitations continued to be an impediment. He reported feelings of anger, easy frustration, and difficulty with positive feelings. On mental status examination, he was appropriately dressed and groomed and friendly. His mood was frustrated, and affect was congruent to mood. He presented without disturbances of thought process and thought content, and without signs of perceptual disturbance. He was fully oriented, and his insight and judgement were fair/good. He denied suicidal or homicidal ideation. On June 2020 VA treatment, the Veteran reported he was lifting weights and using a punching bag, which helpful to channel his anger. He reported struggling with fatigue. His mood was frustrated and affect congruent to mood. He was fully oriented with no report of visual or auditory hallucinations. He reported no suicidal ideation. His voice was within normal limits. He had been working part-time as an insurance salesman until the pandemic forced him to stop seeing clients face-to-face. He reported that he had tried to stay busy, spending some time fishing and enjoying the benefits of living near the beach. The Veteran submitted a claim for an increased rating for his psychiatric disability though the matter was already on appeal which was received by VA on January 19, 2021. On January 19, 2021 VA treatment, the Veteran reported feeling very nervous, restless, and worried, with feeling more stressed and trouble focusing or thinking clearly. He reported that this was his usual mood most days. He presented as anxious and irritable. He did not endorse having any thoughts of self-harm. On mental status examination, his speech was normal. His behavior was cooperative, restless, and agitated. His mood was anxious and irritable, and affect was mood congruent with normal range. His thought processes were coherent, goal-directed, and racing. His thought content included helplessness, loss, self pity, pessimism, loss of control, chronic pain, and diminished interests. He denied suicidal or homicidal ideations. He was fully oriented, and his memory and concentration were intact. He had mild to moderate impairment in his judgment. In a January 2021 medical opinion statement, a treating psychiatrist stated that he suffers from chronic major depressive disorder and posttraumatic stress disorder. The provider opined that persistence and severity of the Veteran's symptoms had affected his quality of life, relationships, and ability to work. In a February 2021 medical opinion statement, a treating social worker opined that the Veteran's chronic pain contributes to his feelings of anxiety and depression, and lessens his ability to perform any physical work or recreation, and limits his cognitive ability to concentrate and make decisions. The provider opined that in the last year, the Veteran's extensive symptomatology had brought about a marked decline in his "armamentarium" of coping skills. The provider noted that the Veteran experiences sleep disruption, nightmares, and a sense of fear or dread about his future, and his extensive symptomatology prevents him from enjoying any aspect of life, though he was trying to find some relief and improve his mental outlook. On February 2021 VA examination, the Veteran reported that he had been married for 7 years. He reported that he is close to his older sister. He reported he was working part-time in video for sales. He reported sleeping 2 to 3 hours per night. He reported having pessimistic views all of the time. He reported anxiety and getting impulsive, such as an urge to run when he goes camping. His reported symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; impairment of short and long term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a work-like setting; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. On mental status examination, the Veteran was described as well-groomed and fully-oriented. He was cooperative with good eye contact. His speech was normal. His mood was anxious, sad, and irritable, and his affect was constricted. He reported frequent current suicidal ideations and denied homicidal ideations. His thought processes were linear, logical, and goal directed. His insight, judgment, and reasoning appeared intact. There was no evidence of any perceptual disturbances, paranoia, or delusional thinking. He was fully oriented. The examiner opined that the Veteran's persistent depressive disorder results in occupational and social impairment with deficiencies in most areas. The examiner opined that the Veteran's condition had progressed into a more severe condition of persistent depressive disorder, with evidence of more severe symptoms. The examiner opined that the persistence and severity of the Veteran's symptoms have affected his quality of life, relationships, and his ability to work. Based on this evidence, a March 2021 rating decision granted a 100 percent schedular rating for the Veteran's psychiatric disability effective January 19, 2021, the date on which the additional increased rating claim was received, and the medical evidence showed increased symptomatology. [The period of a total disability rating is not before the Board.] Additional treatment records throughout show symptoms for the most part similar to those noted on the contemporaneous examinations and treatment visits described above. The Veteran has also submitted lay statements describing his difficulties due to psychiatric disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Psychiatric disability is rated under Code 9433 and the General Rating Formula for Mental Disorders. A 30 percent rating is warranted when there is 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 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 (retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9433. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The evidence does not show that, prior to December 1, 2015, symptoms of the Veteran's psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity, so as to meet or approximate the criteria for the next higher (50 percent) rating. While he reported depression, anxiety, and chronic sleep impairment, he consistently maintained relations with close family (his girlfriend-turned-wife, his sister, and his parents). There was no evidence of a cognitive or thought disorder or impaired insight or judgment, and he consistently denied having suicidal ideation. The October 2010 VA examiner opined that the Veteran's psychiatric disability had a moderate impact on social and occupational functioning. This disability picture does not reflect that due to psychiatric disability he had occupational and social impairment with reduced reliability and productivity prior to December 1, 2015; instead, it reflects a reasonably well-functioning individual with no deficiency in daily-activity functioning, thinking, or judgment, and with the ability to maintain familial relationships and regular leisure activities. The Board finds significant that throughout the Veteran maintained at least some ability to work, at least part-time per his self-reports (albeit in a family owned insurance business); work of a nature that required ability to have some inter-relationships with others and has indicated that he found the work satisfying. Continuing the analysis, the reports of the VA examinations, treatment records, and lay statements, overall, do not show that at any time from December 2015 to January 19, 2021, the Veteran's psychiatric disability was productive of total occupational and total social impairment, so as to warrant a 100 percent schedular rating (the Board notes that even after the effective date of the 100 percent schedular rating, the Veteran was reporting that he was working part-time, in video sales; again, work requiring some social contacts. While observations by VA examiners and treatment providers suggest that he had increasingly limited social relationships and increased withdrawal, such impairment is encompassed by the criteria for the 70 percent rating currently assigned for the period (which contemplates deficiencies in most areas). What is significant is that he continued to function adequately in activities of daily living, maintained close familial relationships, drove, worked part-time, and rehabilitated and tended to his home, all of which are persuasive evidence of a significant level of social and occupational functioning, and do not reflect a disability picture of total social or total occupational impairment during the relevant period. The disability picture presented simply does not reflect severity of disability consistent with the criteria for a 100 percent schedular rating prior to January 19, 2021, and such rating is not warranted. The Board notes the lay statements submitted by the Veteran in support of this claim. They describe the types of problems that result from his psychiatric symptoms. The level of functioning impairment he describes is encompassed by the criteria for the 30 percent and 70 percent ratings assigned; thus, even the lay statements do not support that an increased rating is warranted at any time. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.