Citation Nr: 21006723 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-23 748 DATE: February 5, 2021 ORDER A rating higher than 70 percent for major depressive disorder (hereinafter “psychiatric disability”), is denied. FINDING OF FACT The Veteran’s psychiatric symptoms during the appeal period resulted in occupational and social impairment with deficiencies in most areas, but not total social impairment. CONCLUSION OF LAW The criteria for a rating higher than 70 percent for psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to February 1989. He contends that a higher rating is warranted for his psychiatric disability. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Since December 2013, the Veteran has been assigned a 70 percent rating for his psychiatric disability. This rating contemplates 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 that is 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 worklike setting); and inability to establish and maintain effective relationships. The higher 100 percent rating is assigned when 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; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. The criteria listed above serve as examples of the type and degree of the symptoms or effects that would justify a rating and are not meant to be an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Social and occupational impairment must be due to the symptoms listed for that rating level, “or others or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Veteran has not asserted why he believes a higher 100 percent rating is warranted in this case and has not provided evidence supporting such a rating. Based on a review of the evidence, the Board finds that a 100 percent rating is not warranted. The Veteran’s treatment records and examination reports during the appeal period document severe psychiatric symptoms. For example, at the April 2015 VA examination, the Veteran reported depressed mood, lack of motivation, apathy, irritability, sleep impairment and periodic suicidal thoughts without intent or plan. The Veteran’s mood was depressed. The September 2020 VA examination found psychiatric symptoms including depressed mood, anxiety, flattened affect, disturbances of motivation and mood, chronic sleep impairment, an inability to establish and maintain relationships, and difficulty adapting to stressful circumstances. VA and private treatment records during the appeal period are consistent with VA examination reports, reflecting a history of depressed mood, anxiety, blunted affect, chronic sleep impairment, lack of motivation or interest, some focus and concentration problems, social isolation, irritability and consistent passive suicidal ideation. There is no doubt that the Veteran experiences severe psychiatric symptoms. However, these symptoms are all contemplated by a 70 percent rating. During the appeal period, the Veteran consistently remained alert and oriented and maintained appropriate hygiene. He was not a persistent danger to himself or others and showed no evidence of hallucinations or delusional thoughts. The Veteran had been married since 1988 and had two sons, and while his psychiatric disability affected these relationships the evidence indicates he maintained his relationship with his family. While the Veteran had periods of unemployment, he reported at the September 2020 examination that he was undergoing vocational rehabilitation to find employment. The evidence is otherwise negative for any grossly inappropriate behavior, disorientation to time or place, memory loss for basic concepts such as his own name, or other symptoms which might suggest total occupational and social impairment consistent with a 100 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 70 percent is warranted. Therefore, the claim for increased rating must be denied. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.