Citation Nr: 21077075 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-05 852A DATE: December 28, 2021 ORDER An initial rating in excess of 50 percent for an acquired psychiatric disability, characterized as adjustment disorder with mixed anxiety, depression and primary insomnia, prior to June 9, 2016 is denied. A 70 percent rating for an acquired psychiatric disability, characterized as major depressive and obsessive compulsive disorders with anxious distress, but not higher, is granted from June 9, 2016 through January 13, 2019, subject to the controlling regulations applicable to the payment of monetary benefits. A rating in excess of 70 percent for the psychiatric disorder at issue from January 14, 2019 is denied. REMANDED The appeal for an initial rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine with tendonitis is remanded. The appeal for an initial rating in excess of 20 percent for right shoulder osteoarthritis with tendonitis and impingement syndrome is remanded. FINDINGS OF FACT 1. Prior to June 9, 2016, the acquired psychiatric disability at issue did not result in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. From June 9, 2016 through January 13, 2019, the acquired psychiatric disability at issue resulted in deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but did not result in total occupational and social impairment. 3. From January 14, 2019, the Veteran's acquired psychiatric disability does not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for the Veteran's service-connected acquired psychiatric disability prior to June 9, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. The criteria for a 70 percent rating, but not higher, for the Veteran's service-connected acquired psychiatric disability from June 9, 2016 through January 13, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 3. The criteria for a rating in excess of 70 percent for the Veteran's service connected chronic acquired psychiatric disorder from January 14, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to October 2013. The Board thanks him for his service. He appeals from a January 2014 agency of original jurisdiction (AOJ) rating decision that granted service connection for the disabilities on appeal. The right shoulder and lumbar spine ratings were increased to 20 percent, effective from the date following his service discharge, in a September 2016 rating decision. The psychiatric disorder rating was increased to 50 percent, effective from the date following his service discharge, in a December 2016 rating decision, and to 70 percent, effective from January 14, 2019, in an April 2019 rating decision. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). Nevertheless, staged ratings are appropriate in any initial rating claim where the evidence contains factual findings that show a change in the severity of symptoms during distinct time periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service connected psychiatric disorder is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where 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; 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112(Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran contends that his psychiatric disorder is underrated. See September 2021 Informal Hearing Presentation. Based on the evidence, the Board concludes that a rating in excess of 50 percent is not warranted for the Veteran's service connected psychiatric disorder prior to June 9, 2016. A July 2013 VA psychiatric examination report, which indicates that he had not been suicidal, homicidal, violent, psychotic, manic, hypomanic, obsessive, or compulsive, although he had been occasionally forgetful about newly learned information. He exhibited depressed mood, anxiety, chronic sleep impairment, flattened affect, and difficulty in establishing relationships. He was occasionally forgetful about newly learned information but did not describe suffering from a formal continuing memory disorder. He reported frequent minor issues with superiors through the years. He had experienced a significant confrontation with his immediate superior earlier that year, which resulted in the Veteran being placed on limited duty. He spent his spare time working out and looking for a job. The examiner opined that occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation, best summarized the level of occupational and social impairment. He noted that the Veteran would be able to perform work on a regular basis from a mental health perspective. In September 2013, the Veteran maintained that his symptoms had worsened since stopping therapy. He reported daily anxiety attacks, crowd avoidance, sleep disturbance, trouble concentrating, and nightmares. See September 2013 VA Form 21-4138. In October 2013, he also reported memory issues, excessive drinking, and being easily angered. See October 2013 VA Form 21-4138. In June 2014, he maintained that he had daily panic attacks, social impairment, memory loss, and mood swings, and was on medication for anxiety. See June 2014 Notice of Disagreement. The Board concludes that the preponderance of the evidence is against a rating in excess of 50 percent prior to June 9, 2016. The symptoms noted in the July 3013 VA examination include depressed mood, anxiety, chronic sleep impairment, flattened affect, and difficulty in establishing relationships. These symptoms are consistent with a 50 percent rating. See Vazquez-Claudio, 713 F.3d at 116. The Veteran's service connected psychiatric disorder did not produce deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Notably, the July 2013 VA examiner described the functional impact of the Veteran's psychiatric disability as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, which is consistent with a 30 percent rating. The Board acknowledges the Veteran's contention of daily panic attacks, which is mentioned in the criteria for a 70 percent rating. However, having one or more symptoms within the identified criteria for a higher rating does not automatically trigger the granting of a higher rating; it is the overall disability picture that the Board must consider. See 38 C.F.R. § 4.7. The Veteran reported memory problems during this time period, but the evidence does not reflect memory loss for names of close relatives, own occupation, or own name. While the Veteran reported being easily angered, there is no evidence of violence. The Board also concludes that from June 9, 2016, a 70 percent rating, but not higher, is warranted for the psychiatric disability at issue. During a June 9, 2016 individual therapy session, the Veteran's therapist reported that the Veteran had chronic passive thoughts of suicide, although this was without plan or intent. He was advised about an exercise to develop mental control of his thoughts. Moreover, at the time of the September 8, 2016 VA examination, the Veteran reported regularly exhibiting road rage and demonstrating antagonistic driving behaviors. While he denied any specific plan to kill himself and he convincingly denied any intent to harm himself, he described active and passive suicidal ideation on a daily basis and thinking about overdosing on pills and reported that he had access to Percocet and muscle relaxers. He complained of anxiety, panic attacks daily, avoidance of highways and crowds, nightmares, uncontrollable crying, safety behaviors, and difficulty getting along with others that resulted in social isolation. He had worked for one month since retiring from the Navy, but co-workers had responded negatively to his strict military style of management and he reportedly "lost it on people." He also had obsessive compulsive disorder symptoms that included preoccupation with orderliness, interpersonal control, and inflexibility. He had an upcoming appointment with a provider to discuss the possibility of initiating psychotropic medication for depression and anxiety. He was alert and oriented, dressed casually, neat, and appropriate, and had good grooming, hygiene, attention, and concentration, with appropriate eye contact. His mood was dysthymic with constricted range of affect, and his speech, while fluent and productive, was at times overproductive, but he could be redirected. His thought process was clear, coherent, and goal-directed without evidence of formal though disorder or psychosis. He had no psychotic symptoms and denied homicidal and suicidal ideation. His judgment and insight appeared average. He had an irritable affect which gave the initial impression of guardedness. However, he was able to establish rapport, was engaged throughout the interview, and related well. The examiner indicated that 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 -- rather than deficiencies in most areas or total occupational and social impairment -- best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses. A subsequent September 2016 VA mental health record shows that the Veteran had started school. The provider and the Veteran discussed other areas of growth, to include adjusting expectations and being more flexible. The Veteran's mood was anxious and depressed with congruent affect. While he denied suicidal or homicidal ideation or intent, the therapist noted that the Veteran was "evaluated at each session due to chronic passive thoughts." A December 2016 treatment record indicates that the Veteran had been taking a medication without any effect, and was against medication and had misguided beliefs. He had been suicidal but did not want to take his life. Additional protective factors and coping with dark thoughts were explored. He was anxious and dysthymic and was at moderate risk due to chronic suicidal ideation, drinking behavior, and access to a means of suicide. He did not meet mandatory admission criteria. The January 2019 VA examination report shows that the Veteran reported panic attacks every couple of days, avoidance of highways and crowds, nightmares, suicidal ideation, safety behaviors, road rage, poor sleep, social isolation, depression, having no life, and self criticism. He also reported a near absence of a current social life, with no friends. However, he had relationships with his brothers, with whom he met in person once a week. He also reported that he was pursuing a masters degree in human resources. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and impaired impulse control. He endorsed daily passive suicidal ideation. The Veteran was alert and oriented, casually dressed, and neat and appropriate, with good grooming, hygiene, attention, and concentration. His mood was dysthymic with irritable affect, but his speech was fluent and productive, and thought process was clear, coherent, and goal-directed, without evidence of formal thought disorder or psychosis. His judgment and insight appeared average. While his irritability gave the impression of guardedness, making it difficult to establish rapport, he denied homicidal ideation, and while he endorsed daily passive suicidal ideation, he had no plan or intent to harm himself. Additionally, the examiner indicated that occupational and social impairment with reduced reliability and productivity, rather that total occupational and social impairment, best summarized the Veteran's level of occupational and social impairment with regard to all mental disorders. The Board concludes that the preponderance of the evidence is against a rating in excess of 70 percent from June 9, 2016. The symptoms noted in the September 2016 and January 2019 VA examinations include anxiety, depression, suspiciousness, low self-esteem, frequent panic attacks, avoidance of highways and crowds, nightmares, suicidal ideation, and difficulty getting along with others that resulted in social isolation. These symptoms are consistent with a 70 percent rating. See Vazquez-Claudio, 713 F.3d at 116. The evidence during this time period does not show that total occupational and social impairment was present or nearly approximated. The August 2016 VA examination report indicated that he kept in touch with a brother; he was able to establish rapport with the examiner, was engaged throughout the interview, and related well. Additionally, it was noted in September 2016 that the Veteran was going to school. Notably, neither VA examiner found total occupational and social impairment. Therefore, even considering the Veteran's reported psychiatric symptoms from June 9, 2016, the frequency, severity, and duration of these symptoms do not rise to the level required by the 100 percent rating. Moreover, there is no evidence of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; 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 Board acknowledges frequent suicidal ideation during this time period. However, the record does not reflect that the Veteran is a persistent danger to himself or others, as contemplated in the 100 percent rating. He has consistently denied homicidal ideation. The September 2016 VA examiner was "convinced" that the Veteran had no intention of hurting himself, and the January 2019 VA examiner noted passive suicidal ideation with no plan or attempts to harm himself. The preponderance of the evidence is against a higher rating from June 9, 2016, and there is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). REASONS FOR REMAND The appeal for an initial rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine with tendonitis is remanded. The appeal for an initial rating in excess of 20 percent for right shoulder osteoarthritis with tendonitis and impingement syndrome is remanded. The Veteran appeals for higher ratings for his right shoulder arthritis and thoracolumbar spine degenerative disc disease with tendonitis. Both of the 20 percent ratings assigned are based on limitation of motion, as are higher ratings. The examination reports of record concerning them do not contain all of the information required by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action: Schedule a VA examination to determine the severity of the Veteran's (a) thoracolumbar spine degenerative disc disease with tendonitis disability, and (b) right shoulder osteoarthritis with tendonitis and impingement syndrome. The examiner must conduct range of motion testing, specifically noting the ranges of motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing, with comparison to the range of the opposite undamaged joint (when applicable). If any indicated testing cannot be completed, then the examiner must specifically indicate why such testing cannot be done. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, including by estimating, if necessary. The examiner should review July 2013 and September 2016 VA examination reports and comment, if possible to do so without resorting to mere speculation, as to whether measurements for pain on active motion, passive motion, weight-bearing, and/or nonweight-bearing as well as any additional limitation of motion during flare-ups, can be estimated for the prior VA examinations. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disabilities herein and discuss any effects on occupational functioning and activities of daily living. (Continued on the next page) If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment, without resorting to speculation, indicate this and explain with a detailed rationale. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.