Citation Nr: 21073027 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-32 231 DATE: December 7, 2021 ORDER An initial rating for an acquired psychiatric disability to include unspecified depressive disorder, insomnia disorder with a history of alcohol use disorder in remission, posttraumatic stress disorder (PTSD), and anxiety, in excess of 50 percent disabling, is denied. FINDING OF FACT The Veteran's acquired psychiatric disability to include unspecified depressive disorder, insomnia disorder with a history of alcohol use disorder in remission, PTSD and anxiety presents with occupational and social impairment with reduced reliability and productivity with symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for an acquired psychiatric disability to include unspecified depressive disorder, insomnia disorder with a history of alcohol use disorder in remission, PTSD and anxiety are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9343. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1982 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision (notification on January 16, 2017) from a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for an acquired psychiatric disorder and assigned an initial 30 percent rating, effective September 2, 2008. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing has been associated with the electronic file. In April 2021, the Board remanded this matter was remanded in for additional development, specifically, a new VA examination and outstanding private treatment records. Since the additional development has occurred and the Veteran was provided an adequate VA examination, the Board finds that there has been substantial compliance with its prior remand directives. Accordingly, this matter is ready for adjudication. An initial rating for an acquired psychiatric disability to include unspecified depressive disorder, insomnia disorder with a history of alcohol use disorder in remission, PTSD, and anxiety, in excess of 50 percent disabling, is denied. The Veteran contends that his service-connected acquired psychiatric disorder to include unspecified depressive disorder, insomnia disorder, with a history of alcohol use disorder, in remission, also claimed as PTSD and anxiety (acquired psychiatric disorder) warrants a rating higher than the assigned 30 percent rating. See NOD received 3/08/2017 at page 1. After the Board's April 2021 remand, the RO increased the Veteran's initial rating for an acquired psychiatric disorder from 30 to 50 percent from September 2, 2008, the date of claim. See Rating Decision received 9/30/2021; see also VA 21-4138 Statement in Support of Claim received 9/02/2008. Therefore, the Board will consider whether a rating in excess of 50 percent is warranted for the entire period on appeal. 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, 114-18 (Fed. Cir. 2013). The issue in this appeal 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 did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. In pertinent part, under the General Formula, 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 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 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. The July 2021 VA examiner performed an in-person examination and assessed that the Veteran had occupational and social impairment with reduced reliability and productivity, which corresponds to a 50 percent rating. See C&P Exam received 8/03/2021 at page 3. On examination, the Veteran manifested symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships. Id. at page 9. The Board finds that although some symptoms such as depressed mood, anxiety, chronic sleep impairment and mild memory loss are more consistent with the example symptomatology found in the 30 percent rating for occupational and social impairment with occasional decrease in work efficiency. However, given his additional symptoms of flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships; the evidence more nearly approximates the current 50 percent rating. At the examination, the Veteran reported that he has been married for 21 years, enjoys recreational activities such as watching basketball and traveling, and is close to his family. The Veteran reported that he stopped working in 2006. In his private treatment records, he attributed the cause to his physical pain. See Medical Treatment Record received 4/27/2021 at page 6. He stated that he did not have close friends or involvement with outside organizations. See C&P Exam received 8/03/2021at page 5. He reported no legal trouble, physical violence, or substance abuse. The Veteran stopped drinking alcohol nine years ago, and only recently started drinking Tequila to manage pain, he reported non-service connected back and feet pain. Id. at 6. In the remarks, the July 2021 VA examiner opined that the Veteran no longer met the clinical criteria for Alcohol use disorder. Id. at 13. The July 2021 VA examiner observed that the Veteran was dressed and groomed appropriately and was logical and coherent, which is the opposite symptomology corresponding to a 70 percent rating which manifests with illogical speech, which is obscure and irrelevant, and neglect of personal appearance and hygiene. The Veteran also denied suicidal ideations, self-harm, and was never hospitalized due to his mental health condition. Id. at 6. Again, this competent and probative evidence does not tend to support a finding of a 70 percent rating (occupational and social impairment with deficiencies in most areas), which manifests with symptoms, such as suicidal ideation, impaired impulse control with periods of violence. The July 2021 VA examiner reviewed the November 2016 VA examination and incorporated the findings into the Disability and Benefits Questionnaire. Of note, the November 2016 VA examiner reported a domestic violence incident with no arrest in 2006, which was several years prior to the period on appeal and before the Veteran sought mental health services in 2010. See C&P Exam received 11/09/2016 at page 4. Like the July 2021 VA examiner, the November 2016 VA examiner found no evidence of self-harm; the Veteran denied past and current suicidal ideation; his thoughts were linear and goal-directed; and he was cooperative and pleasant with appropriate attire and hygiene. Id. at page 9. Furthermore, the July 2021 VA examiner opined that although the February 2016 VA examiner noted symptoms attributable to PTSD and the Veteran met the criteria, a diagnosis for the disorder was not made. Id. at page 13. The July 2021 VA examiner corrected this and related that the Veteran's insomnia and depressive disorder were subsumed in his PTSD disorder. Id. At the hearing, the Veteran reported a lack of sleep, nightmares, memory issues, and irritability, which he attributed to his psychiatric condition. See Hearing Testimony received 2/09/2021 at pages 4, 5, and 7. However, these example symptomatology are contemplated and compensated by his current 50 percent rating. Although he reported irritability, he did not report any incidences of violence. Id. at page 5. On remand, the Veteran's private treatment records were associated with the file. In the treatment notes, the Veteran reported anxiety, depression, and sleep impairment, which are all contemplated in his current rating and tend to support a finding of occupational and social impairment with reduced reliability and productivity. See Medical Treatment Record received 4/27/2021 at pages 4, 6, and 8. Upon a holistic review of the relevant, competent evidence, the Board finds that the preponderance of the evidence is against a rating is excess of 50 percent disabling for the entire period on appeal; therefore, the appeal is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.