Citation Nr: 21005836 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-54 793 DATE: February 2, 2021 ORDER Entitlement to a rating of 50 percent, but not higher, for the entire period on appeal for unspecified anxiety and depressive disorders (hereinafter “psychiatric disability”) is granted. Entitlement to an effective date earlier than July 27, 2015, for the assignment of a higher rating for a psychiatric disability is dismissed. FINDINGS OF FACT 1. The occupational and social impairment from the Veteran’s psychiatric disability has been manifested by reduced reliability and productivity. 2. At his November 2020 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to an effective date earlier than July 27, 2015, for the assignment of a higher rating for a psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent, but not higher, for a psychiatric disability have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for withdrawal of the appeal of the claim of entitlement to an effective date earlier than July 27, 2015, for the assignment of a higher rating for a psychiatric disability have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 20.204 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1971 to February 1974 and April 1975 to August 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of that hearing has been associated with the claims file. Increased Rating – Psychiatric Disability The Veteran has asserted that he should have a higher rating for his psychiatric disability as his symptoms are worse than those contemplated by the currently assigned rating. At a November 2015 VA examination, the Veteran reported that he had been in an intimate relationship with the same woman for 10 years, but reported that the relationship was strained due to his problems with anger and withdrawal. He reported that he was currently living with his brother, as he had done so off and on over the years. The Veteran reported that he had been unemployed since retiring from the service in 1992. He reported that he just did better alone, and there was nothing available for him in the small town in which he lived. He reported symptoms of exaggerated startle response, insomnia, intrusive thoughts, nightmares, irritability with angry outbursts, emotional withdrawal, avoidance, hypervigilance, suspiciousness, depression, anxiety, lack of interest, periodic crying episodes, social isolation, and guilt. He reported that he went to church, and out to eat with is girlfriend, but that he was irritable much of the time. He reported that he had one very close friend, and that his relationship with his family was strained. The examiner noted that the Veteran experienced recurrent recollections, avoidance, irritability, persistent negative emotional state, markedly diminished interest or participation in significant events, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, difficulty with concentration, and sleep disturbance. Upon mental status examination, the Veteran appeared neat and clean, and he was pleasant and cooperative. He was alert and correctly oriented to person, place, time, and date. He presented as highly anxious and depressed, he was noted to tremble, and appeared to need reassurance. He appeared somewhat emotionally dependent. The examiner noted that the Veteran’s symptoms consisted of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner diagnosed unspecified depressive disorder and unspecified anxiety disorder, and found that the Veteran had social and occupational impairment manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. At the November 2020 hearing, the Veteran testified that the symptoms of his psychiatric disability have really stayed the same since his November 2015 VA examination. Specifically, the Veteran reported that his symptoms had not gotten worse. The Veteran further testified that his doctor and discussion group therapy sessions had been a tremendous help in managing his symptoms. The Board finds that the Veteran is entitled to a rating of 50 percent for his psychiatric disability. In this regard, the Board finds that the social and occupational impairment from the Veteran’s disability has more closely approximated reduced reliability and productivity. At his November 2015 VA examination, it was noted that the Veteran had memory impairment and would have difficulty adapting to stressful circumstances, to include in an occupational setting. Further, the Veteran reported fairly moderate symptoms or irritability, angry outburst, avoidance, isolation, hypervigilance, depression, and sleep impairment. The examiner noted that the Veteran had crying spells, was emotionally dependent, and was highly anxious and depressed. While the Veteran was able to maintain a relationship with his girlfriend and family, those relationships were noted to be strained as a result of his irritability and anger. As such, the Board finds that when the Veteran’s disability picture is considered as a whole, his symptoms more closely approximate those contemplated by the 50 percent criteria. As such, the Board finds that entitlement to a rating of 50 percent is warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the VA examination results, and lay statements do not account for each symptom associated with a 50 percent rating for a psychiatric disability. However, the enumerated symptoms under the schedule for rating mental disorders are not exhaustive and are only intended to serve as examples and degrees of the symptoms, or their effects, that would justify a particular disability rating. Therefore, a finding that the Veteran has social and occupational impairment with reduced reliability and productivity is sufficient to support a 50 percent rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Consideration has been given to assigning a higher rating for the Veteran’s psychiatric disability. However, there is no indication from the record that the Veteran’s psychiatric disability is manifested by occupational and social impairment with deficiencies in most areas. In this regard, the Veteran does not have impairment in speech or thought process. His impulse control and judgement are intact. While the Veteran has been noted to be hypervigilant, there is no indication from the record that he has obsessional rituals that interfere with his ability to perform activities of daily living. While strained, the Veteran is able to maintain a long-term girlfriend, and his family. Further, the Veteran has maintained friendships, to include one close friendship. The Veteran does not experience panic attacks, and while he does like to avoid being out in public, he does regularly attend church and go to restaurants with his girlfriend. The Veteran is alert and oriented, and he is able to maintain his personal hygiene. Further, there is no indication from the record that the Veteran is a persistent danger to himself or others. As such, the Board finds that a rating in excess of 50 percent for a psychiatric disability is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the appellant withdrew the appeal of the issue of entitlement to an effective date earlier than July 27, 2015, for the assignment of a higher rating for a psychiatric disability at his November 2020 hearing. Accordingly, there remain no allegations of errors of fact or law for appellate consideration regarding that issue. Consequently, the Board does not have jurisdiction to review that issue on appeal and it is dismissed. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.