Citation Nr: A21019237 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 190508-22512 DATE: December 2, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for other specified trauma and stressor-related disorder (acquired psychiatric disorder) is denied. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected acquired psychiatric disorder has not manifested in total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 70 percent for acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2011 to December 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a timely May 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) electing the Hearing Docket under the provisions of the AMA. The Board hearing was held in March 2021. In a September 2021 letter, the Board notified the Veteran that the Board was unable to produce a complete transcript of the March 2021 hearing due to the audio malfunctions heard throughout his testimony in the Board's Digital Audio Recording System. The Veteran was given the opportunity to schedule another hearing and was informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not desire another hearing and would proceed accordingly. To date, the Veteran has not responded. Accordingly, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following the March 10, 2021 hearing. 38 C.F.R. § 20.302(a). Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's acquired psychiatric disorder is evaluated as 70 percent disabling under 38 C.F.R. § 4.130, DC 9410. In pertinent part, a 70 percent rating 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; 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 inability to establish and maintain effective relationships. A 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). At a February 2016 VA examination, the Veteran was noted as alert and oriented, with a euthymic mood and bright affect. The examiner found no overt signs of depression or anxiety. The Veteran denied homicidal and suicidal ideation. He reported living with friends and having a good relationship with his family. See February 2016 Mental Disorders Disability Benefits Questionnaire (DBQ). A November 2018 VA examination report reflects the Veteran's acquired psychiatric disorder manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported living with different family members on a month-to-month basis and having difficulty in social relationships with civilians. He did report having limited connections with other veterans on social media. The examiner noted the Veteran was cooperative, with a sad mood and appropriate affect. His thought process was goal-directed and there was no evidence of unusual perceptions or thought content. The Veteran reported suicidal ideation, but denied current intent, plan, or preparation. His memory was intact, with fair concentration, impulse control, and judgment. The examiner recorded his symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, and suicidal ideation. See November 2018 Mental Disorders DBQ. At a December 2019 hearing before the Board, which addressed his separate claim of entitlement to a total disability rating based on individual unemployability, the Veteran testified that his psychiatric disorder caused forgetfulness and an inability to focus. He further testified that his tics cause people to become uncomfortable. See December 2019 Hearing Transcript. VA treatment records reflect the Veteran's symptoms consist of depression, anxiety, isolating behaviors, chronic sleep impairment, suicidal ideation, and feelings of helplessness. See Mental Health Notes dated March 24, 2016; March 18, 2017 (reflecting self-harm behaviors and audio hallucinations due to post-surgical pain); April 12, 2017; July 7, 2017; August 14, 2017; August 31, 2017; September 5, 2017; May 16, 2018; August 24, 2018; February 1, 2019. Evaluating the evidence of record, the Board finds that, for the entire appellate period, the frequency, severity, and duration of the Veteran's reported psychiatric symptomatology does not more nearly approximate total occupational and social impairment. Here, the Veteran has not manifested the symptoms listed in the criteria for a 100 percent rating, and the psychiatric symptoms he has manifested do not manifest with such severity, frequency, and duration so as to preclude total social and occupational functioning. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013); see also 38 C.F.R. § 4.130, Diagnostic Code 9410. Rather, the clinical findings consistently show that the Veteran's thought processes and communication were normal, that he did not have persistent delusions or hallucinations, was oriented, that he was appropriately dressed and groomed, and that his memory was grossly intact. Alternatively, the evidence reflects that the Veteran's acquired psychiatric disorder has not caused total social impairment, as he has maintained some social relationships, including with his family, and he has been noted to be generally cooperative and exhibiting normal communication by VA examiners and health care providers. See 38 C.F.R. § 4.130. Accordingly, the criteria for a 100 percent rating have not been satisfied or approximated during the pendency of this claim. Id. In sum, the Board finds that the probative medical and lay evidence establishes that the Veteran's psychiatric disorder has been productive of symptoms including anxiety and depression, suicidal ideation, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that these psychiatric symptoms and manifestations, coupled with his additional documented symptoms including isolating behaviors, most closely approximate occupational and social impairment with deficiencies in most areas. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9410; see also Mauerhan, 16 Vet. App. 436 (holding that, for the Board to assign a specific rating, it need not find all or even some of the symptoms present; rather, it only need find that the functional effect of the symptomatology justifies a particular rating). The evidence has not shown symptoms of 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; or other symptoms of similar severity. Accordingly, the probative evidence shows the Veteran's disability does not meet the criteria for a higher, 100 percent, rating for an acquired psychiatric disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9410. As the preponderance of the evidence is against entitlement to a rating in excess of 70 percent, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.