Citation Nr: 21072265 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-11 727 DATE: December 2, 2021 ORDER Entitlement to an initial rating of 50 percent, but no higher, for an acquired psychiatric disorder, to include anxiety disorder, posttraumatic stress disorder (PTSD), and a chronic adjustment disorder, prior to September 15, 2016, is granted. FINDING OF FACT From June 2, 2012 to September 14, 2016, the Veteran's acquired psychiatric disorder symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. He was not found to have occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW From June 2, 2012 to September 14, 2016, the criteria for an initial evaluation of 50 percent, but no higher, for service connected acquired psychiatric disorder, to include anxiety disorder, PTSD, and a chronic adjustment disorder, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1979 to April 1988, and in the United States Army from April 2011 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Introduction The Veteran sought an initial increased rating in excess of 30 percent for his service-connected acquired psychiatric disorder prior to September 15, 2016. In a September 2020 Board decision, the Board denied the Veteran's claim of entitlement to an initial rating in excess of 30 percent prior to September 15, 2016, and a rating in excess of 50 percent, from September15, 2016. It also denied entitlement to total disability rating based on individual unemployability (TDIU). The Veteran appealed the denial of entitlement to an initial rating in excess of 30 percent for his psychiatric disorder prior to September 15, 2016 to the Court of Appeals for Veteran's Claims (Court). In July 2021, the Court granted a Joint Motion for Partial Remand (JMPR), in which the Parties agreed that the Board failed to provide an adequate statement of reasons or bases in assessing whether the Veteran is entitled to a rating greater than 30 percent prior to September 15, 2016. The Parties agreed that the Board did not address potentially favorable evidence of symptoms that may warrant a rating in excess of 30 percent during the period prior to September 2016. See 38 C.F.R. § 4.130; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The appeal as to the remaining issues was dismissed. Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The Veteran is in receipt of an initial 30 percent rating. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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. See 38 C.F.R. § 4.7. The Veteran's acquired psychiatric disorder, to include anxiety disorder not otherwise specified, PTSD, and a chronic adjustment disorder, is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this rating formula, a 30 percent rating is assigned when a veteran's disability causes 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when the psychiatric condition produces 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when the psychiatric condition produces 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 work-like setting); inability to establish and maintain effective relationships. Id. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The VA is required to perform a "holistic analysis" in which it "assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Entitlement to an initial rating of 50 percent, but no higher, for acquired psychiatric disorder is granted. Affording the Veteran the benefit of the doubt, the Board finds that for the period of June 2, 2012 to September 14, 2016, his psychiatric symptoms did more closely approximate the criteria for a 50 percent rating. The Veteran was initially evaluated at a November 2012 VA examination. The examiner diagnosed the Veteran with anxiety disorder not otherwise specified, as subthreshold PTSD. At that time, the examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. The examiner opined that the Veteran's level of occupational and social impairment was best summarized as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. The examiner found that the Veteran had chronic sleep impairment, and that he . had been referred to mental health services due to irritability and problems sleeping in June 2012. The Veteran reported having three confrontations recently, and that he was on edge and constantly on alert. Specifically, the Veteran reported that his employer transferred him in May 2012, he received a nice transfer bonus and at the time, he was with the company for 24.5 years and never was in disciplinary trouble at work. He informed the examiner of three incidents at work in which he used vulgar language at a supervisor, cursed with a co-worker of which the Veteran pushed the co-worker out of his zone and another coworker incident in which another coworker cursed at the Veteran and the Veteran was told to let it go by another coworker. The Veteran stated that he had to remember he was not in the military at the time. The Veteran said that he would get irritated with other drivers and chased one down, but just gave up. The examiner reported no delusions or hallucinations or homicidal ideation but did report poor impulse control and anger management. The examiner reported no suicide attempt or ideation, no psychiatric hospitalizations, no prescribed antidepressant or anxiety medication. The examiner indicated that the Veteran reported yelling at a coworker on yesterday but then also apologizing to him. The Veteran also reported that he was last in a physical fight in July at a card game. Upon mental status examination, the examiner reported that the Veteran was cooperative, and his speech and affect were normal. The examiner reported that the Veteran was oriented to person, time and place, and his attention and concentration were adequate for the purposes of the examination. The Veteran reported that he was moody and angry because he was made to remember some things he did not really want to talk about, like with his ex-wives, being in the Marine Corps and how he tries to not really think about that. The Veteran also told the examiner that he was in touch with all of his children and that he made a promise to that he would spend more time with his children and grandchildren. He reported that he kept up with his own housework, he had no problems with dressing, bathing or grooming. Then, the Veteran underwent a VA PTSD evaluation in January 2016. The examiner found that a reliable assessment of the Veteran's true psychological condition could not be obtained due to possible problems associated with his credibility. The Veteran reported living with his wife, being married for almost two years and described his marriage as going ok. The Veteran reported communicating with all of his children on a regular basis. He also reported that his mother died two months ago. The Veteran reported that he remained close with two of his sisters. The Veteran also reported having three close friends. The examiner reported that the Veteran did not indicate any impairment of activities of daily living, (domestic chores, cooking, bathing, grooming, toileting, cooking, shopping, driving, traveling) as a result of a psychiatric condition. The examiner reported that the Veteran had been employed at his current occupation since 1989. The Veteran explained that he was currently on leave and stated that he went on stress leave beginning on January 13th and was supposed to go back on the 31st to be evaluated. The Veteran reported that he had been on leave since his VA psychiatrist provided documentation for him to take to his employer. The Veteran explained to the examiner that in terms of his position at work, he was on the assembly line but was now in an area where he is not around a lot of people. The examiner reported that the Veteran explained that in terms of work relationships, since the 2012 VA examination, he had a couple of incidents, one with another employee and another with a supervisor, in which the situation escalated, and he became angry. The Veteran reported that he was written up, but it was later dismissed. The examiner noted that in January 2015, the Veteran apparently obtained a different position at his job that he considered to be less stressful and that was higher paying; since that time, clinical documentation does reflect some report of increased use of alcohol (tent to twelve drinks weekly) as of August 2015 and some continued relational stress with his wife. The examiner noted that a December 2015 mental health record indicated that the Veteran reported increased stress, with the VA therapist commenting that Veteran would benefit from being off work to deal with grief issues and other stressors to include his involvement with the National Guard. The Veteran further reported meeting with his VA psychiatrists on a regular basis and taking psychotropic medications and when not taking them, he got very irritable and temperamental. The examiner indicated that the Veteran's general appearance was clean, neatly groomed, and he was casually dressed. He exhibited normal speech, a cooperative attitude, appropriate affect, stable overall mood, oriented to person, time and place, logical and coherent thought process with no evidence of any thought dysfunction. The examiner indicated that the Veteran was capable of managing his own affairs. The Veteran reported symptoms of not being well, problems with sleep, nightmare three times a week, and sweating in crowds and problems with his communication. The Veteran stated that when angered, he shuts down and becomes defensive. The Veteran further endorsed feeling that he is moody, sad, having a low stress tolerance, and increased mental health symptoms. The Veteran denied suicidal or homicidal ideation and denied engaging in a reckless/ impulsive behavior. The Veteran reported having intrusive memories almost every other day and experiencing flashbacks when he hears sirens. The Veteran further reported that his wife said he had a hard time concentrating on certain things and tells him this on a regular basis. The Veteran reported current stressors and discussed deaths of his daughters and mother and the examiner also noted his wife's health conditions and his status with the National Guard. During the September 2016 VA examination, the examiner reported that the Veteran came close to being arrested at work in 2014 once when he pulled someone out of a moving car, and choked someone that was racist towards him, and they took care of it and in 2015 he had verbal fight with supervisor and had to be restrained from fighting. Turning to the treatment records, a January 2013 VA treatment record reflects that the Veteran reported some anger, increased irritability, nervous, being on edge, anxious, experiencing poor sleep, night sweats and nightmares. He also stated that he started his medication but did not note any significant difference. He reported still having some night sweats. The Veteran denied use of alcohol except one to two days. He shared an experience that he became very angry with his girlfriend's son for disrespecting her. The Veteran also reported that he joined a gym and was going nearly daily after work. The examiner reported no suicidal or homicidal ideation, there was improved mood, intact insight and judgement, no delusions or hallucinations, and good eye contact but a right eye burst blood vessel. An April 2013 VA treatment record reflects that the Veteran shared that he had an altercation at work, whereby he choked a co-worker, who cursed him and insulted him first. Veteran was not punished or admonished because the other man admitted he was wrong. A November 2013 VA mental health outpatient treatment note reflects that upon encounter, the social worker noted that the Veteran presented on time for session reporting. The social worker further noted that at his employment, the Veteran had been transferred to another department. The social worker noted that this is significant, as the Veteran was working outside driving/inspecting the cars that were finished off the line but now is inspecting on the inside of the plant, which means he is around more people with possibility of increased agitated and stress. The social worker reported that the Veteran experienced three weekly nightmares but had a stable mood, was neatly casually dressed, well groomed, made good eye contact, demonstrated intact insight and judgment and no delusions or hallucinations. A December 2013 mental health outpatient note reflects that the social worker reported that the Veteran had avoidance, hypervigilance and some level of hyper arousal but was able to work, although he had continued conflict and flares of irritability and anger. A May 2014 treatment record notes that the Veteran had concerns about communication with his fiancée and it was disclosed that he was abusing alcohol. An August 2015 mental health treatment note reflects that the examiner noted that Veteran experienced the sudden loss of his thirty-one-year-old daughter. The August 2015 mental health note, as well as prior mental health notes, reflects the Veteran's expression of being afraid of not being able to help his wife and mother due to their medical conditions. In considering suicide risk and protective indicators including factors such as Veteran's history, current presentation, individual strengths and weaknesses, psychosocial and environmental stressors, and variables, psychiatric illness and symptoms, and medical conditions and pain, the August 2015 mental health note reflects that the social worker noted that the Veteran was presently determined as being at individual baseline and presenting no imminent risk for suicide. Prior treatment notes reflect the same determination. An October 2015 mental health note reflects that the psychiatrist reported that the Veteran was fully oriented, denied suicidal or homicidal ideations, no evidence of psychosis and demonstrated good insight and judgement. The Veteran reported that he had been more depressed, irritable, and stressed out. He reported good support from his family, friends and church. The Veteran discussed the loss of his daughter in August and stated that it hit him again when he got his daughter's belongings. He reported erratic sleep, nightmares, intrusive thoughts but denied heavy alcohol or illicit drug use. A December 2015 psychotherapy note reflects that the Veteran presented casually dressed dress, demonstrated flat affect, tearful grief, had stress reaction to other crises. His insight and judgement were fair, mood depressed and stressed. There were no reported delusions or hallucinations or suicidal or homicidal thoughts, intent, or plan. A January 2016 mental health note reflects that the examiner encouraged the Veteran that grief is a natural process but because of his own mental health issues it feels most difficult with the other stressors. The examiner noted that the Veteran's mood was agitated and depressed, his affect was tense and fearful at times, he made limited eye contact, noted as unusual for the Veteran, his insight was fair, judgement was intact, no delusions, hallucinations, nor suicidal or homicidal thoughts, intent or plan. The Veteran's treatment plan was noted as taking medication as prescribed and talking with his wife and sharing his concerns. The January 2016 stress leave letter from the Veteran's VA psychiatrist reflects that he was being treated for anxiety and depression and he recently had substantial losses that exacerbated his psychiatric symptoms. The psychiatrist noted that the Veteran reported that he was unable to focus and concentrate and that he felt overwhelmed and stressed out on a daily basis and that his psychiatric symptoms get more intense in stressful situations of which the psychiatrist agreed can lead to decompensation and deteriorating of his psychiatric conditions. The psychiatrist recommended two weeks absence from work from January 14th to January 31st. The record is absent of private treatment records notating the disability. In a May 2015 statement, the Veteran said that all his symptoms were related to PTSD, and he is seeing a mental health doctor once a month for PTSD along with taking his medications for PTSD and nightmares. Here, the Board finds that based on the foregoing contemporaneous evidence, an initial disability evaluation rating of 50 percent is warranted. The Veteran's disability symptoms manifested to more closely approximate symptoms of depression, irritability, and stress resulting in his mood being depressed, anxious and stressed out, impaired impulse control, with possible physical altercations at work and in social settings. These symptoms more closely approximate being associated with occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining work relationships, and a 50 percent rating can be assigned. Illustratively, what evidences to the Board that his symptoms more nearly approximate a 50 percent initial rating to warrant an increased rating, is the sum total of the evidence including the November 2012 VA examination report of chasing other drivers, getting into physical fight at a card party, pushing his coworker out of his zone, and his noted symptom of chronic sleep impairment in conjunction with Veteran's January 2016 VA psychiatrist's stress leave letter, and the January and September 2016 VA examinations. This evidence informs the Board that the Veteran's symptoms manifested to reflect his frequent involvement in physical altercations, being unable to focus and concentrate, and feeling overwhelmed and stressed out on a daily basis. The September 2016 VA examination report reflects that he was experiencing what more closely approximates a symptom of impaired impulse control, as well as impaired judgment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The evidence indicates that these symptoms have been manifesting similarly since November 2012, even if he was not consistently found to be at that severity of impairment throughout the appeal. The Board also notes that the Veteran's engagement in physical altercations, including pushing a coworker and chasing down drivers, are very serious symptoms, and even if not occurring frequently, indicates a serious level of impairment during this period. The Board does not, however, find that the evidence indicates that a rating higher than 50 percent is warranted for the period from June 2, 2012 to September 14, 2016. The Veteran's psychiatric disorder has been manifested by symptoms such as fear, anxiety, hypervigilance, sleep disturbance, problems with concentration, decreased mood and motivation, suspiciousness, irritability, impaired impulse control, anger, and exaggerated startle response. The Veteran's symptoms have not, however, more nearly approximated the criteria for a rating in excess of 50 percent at any time, and the evidence is not evenly balanced. Throughout this appeal period, the Veteran was alert, well oriented, and well groomed, and he showed no psychotic symptoms. The Veteran did not exhibit illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; suicidal ideation; spatial disorientation; or neglect of personal appearance and hygiene. Moreover, throughout this appeal period, the Veteran has had good relationships with his children and grandchildren. He also has several close friends and participates in social activities. The Veteran does not report any significant difficulties in establishing and maintaining effective relationships, as evidenced by the relationship with his wife. The Board acknowledges that the Veteran has reported having problems with anger which sometimes manifests with actions of violence. This is a very serious symptom, and is a large part of the current increase of the Veteran's rating to 50 percent. The Veteran has reported being quick to anger, curing at someone at work, pushing someone at work, and once pulling someone, who had been racist towards him, out of his car and choking him. Impaired impulse control, such as unprovoked irritability with period of violence, is a symptom enumerated in the 70 percent criteria. However, the presence of a single symptom is not dispositive of any particular disability level. VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms, quantifies the level of occupational and social impairment caused by those symptoms, and assigns an evaluation that more nearly approximates that level of occupational and social impairment. See Bankhead, 29 Vet. App. at 20. While acknowledging the severity of this symptom and the serious impact it has on his occupational and social functioning, the Board does not find that the Veteran's anger and violence has manifested with such frequency or severity that based on this, alone, a higher 70 percent rating is warranted. The Veteran has not manifested any of the other types of symptoms that would warrant a 70 percent rating, nor has he had any other symptoms which are comparable to this level of impairment. He is able to effectively perform his employment, maintains good relationships with his family, and is generally functional in society. The Board finds that his disability picture, overall, does not approximate the criteria for a 70 percent rating, despite this symptom. The Board has considered the Veteran's accounts of depression, grief, emotional and job-related stress, being on edge, chronic sleep impairment and irritability that impacted his occupational and social interactions and find that the statements are consistent with the contemporaneous medical record. However, holistically, since the initial assignment of the disability evaluation rating, the evidence reflects that the Veteran still socially interacted with his family, friends, reported to work, and demonstrated being able to perform his daily activities. He did not express suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. There is no evidence that the Veteran could not leave the home, could not drive an automobile, and could not perform daily activities of life. The Veteran had problems at work, but did continue to work, and was even able to move to a position that had less stress and paid better. He reported good support from his family, friends and church. This evidence overall therefore fails to demonstrate that the Veteran's psychiatric condition symptoms manifested to cause deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, as contemplated by a 70 percent, and a rating higher than 50 percent is not warranted. Accordingly, the Board finds that the totality of the Veteran's psychiatric symptoms more closely approximated the frequency, duration, and severity that results in occupational and social impairment with reduced reliability and productivity since the initial assignment of the disability rating, and a 50 percent rating is warranted. The Veteran's symptoms have not, however, more closely approximated the criteria for a higher rating, and from June 2, 2012 to September 14, 2016, a rating higher than 50 percent is not warranted. The Board has considered the benefit of the doubt doctrine, but the preponderance of the evidence is against any higher rating. 38 U.S.C. § 5107(b). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.