Citation Nr: 21007595 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-22 298 DATE: February 10, 2021 ORDER A rating for psychiatric disorder at 70 percent, but not higher, from May 20, 2019, but not earlier, is granted, subject to the laws and regulations governing the awards of monetary benefits; a rating in excess of 30 percent prior to May 20, 2019 is denied. FINDING OF FACT The evidence of record shows that the Veteran’s psychiatric symptomatology and its impact on his social and occupational functioning most closely approximating the rating criteria for 70 percent is factually ascertainable from May 20, 2019, but fails to show a total social impairment at any time, or that prior to May 20, 2019, the severity level of his psychiatric disability was any more severe than the levels most closely approximating the rating criteria at 30 percent. CONCLUSION OF LAW The criteria for a 70 percent rating for a psychiatric disorder were met as of at May 20, 2019, but the criteria for a rating in excess of 30 percent were not met prior to May 20, 2019. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty from February 1969 to December 1970. On August 17, 2015, he filed a non-initial claim for rating his PTSD with other specified disorder and alcohol use disorder in excess of 30 percent, which the Regional Office (RO) denied in its November 2015 rating decision. The Veteran appealed. In May 2019, the Veteran testified via a Board’s video conference hearing, a transcript of which is of record. Upon noting the Veteran’s report of worsening of his psychiatric symptomatology, the Board remanded the claim for an evaluation. In a June 2020 rating decision, the RO granted a rating increase from 30 to 70 percent, effectuated from November 26, 2019, the date of the most recent VA mental health evaluation. In a concurrent Supplemental Statement of the Case (SSOC), the RO denied a rating in excess of 30 percent prior to November 26, 2019, and thereafter in excess of 70 percent, and returned the appeal to the Board. Of note, this grant constitutes a “staged” rating, meaning evaluations as supported by the factual findings based on the evidence of record that may warrant different ratings for the distinct severity levels of the disability on review during the distinct periods of pendency of appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Although following the RO’s award of the staged ratings neither has the Veteran nor his representative advanced any specific contention as to why the higher staged ratings may be warranted, the Board notes that the RO’s award was only a partial grant of benefits originally sought in this appeal. As reflected in a Veteran’s December 2017 Notice of Disagreement, he explains that his combat service experience as an infantryman in the Republic of Vietnam has haunted him for many years to the present day and has had a profound impact on his life. With that, the Veteran has been seeking a total disability rating for his psychiatric disorder. As such, the issue before the Board in this appeal is whether a rating in excess of 30 percent prior to November 26, 2019, and thereafter in excess of 70 percent is warranted. Upon considering the Veteran’s contentions in context of all evidence of record viewed as a whole and in light of all pertinent laws, the Board has found that rating his psychiatric disorder at 70 percent, but not higher, from May 20, 2019, but not earlier, is warranted. For VA purposes, all psychiatric disorders, however diagnosed, are rated based on the criteria listed under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 30 percent is assigned when an acquired psychiatric disability causes symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), that cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). Id. A 50 percent is assigned when a psychiatric disorder causes occupational and social impairment with reduced reliability and productivity due to 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. Id. A 70 percent rating is assigned when a psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such 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); or an inability to establish and maintain effective relationships. Id. A total disability rating is assigned when a psychiatric disorder causes total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. In rating mental disorders, the Board carefully considers the symptomatology, whether listed or unlisted by the Formula, to include such factors as the frequency, severity, and duration of the symptoms, the length of remissions, and the Veteran’s capacity for adjustment during the remission periods. See 38 C.F.R. § 4.126(a); see also Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Of note, the regulatory phrase “such as” indicates that the symptoms listed after that phrase are intended only as the examples rather than meant to constitute an exhaustive list that may be mechanically applied to the Veteran’s circumstances, and thus assigning a specific percentage does not require a presence of all, most, or even some of the symptoms. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A converse is also true, that is, the presence of any particular symptom specifically listed by the Formula does not automatically warrant assigning a rating percentage under which that symptom is listed. See Bankhead, 29 Vet. App. at 22. Rather, the language of the regulations is unequivocal in that the symptoms must also cause certain levels of impairment in both occupational and social spheres. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). This means that, while the Veteran’s symptoms are relevant to the Board’s inquiry as to which rating should be assigned, the impact of the pertinent symptoms on occupational and social impairment is controlling. Essentially, a rating is an assessment of the impact the psychiatric symptoms have on social and occupational functioning. Of further note, the extent of social impairment resulting from mental disorders certainly is considered in evaluating the overall levels of disabilities, but even the most persuasive evidence of severe social impairment may not be the sole nor the principal basis for assigning a particular percentage. See 38 C.F.R. § 4.126(b). The rating percentage is intended, insofar as practicable, to represent the average impairment in earning capacity with emphasis placed upon the limitation of activity imposed by the disability. See 38 C.F.R. § 4.1. Ultimately, the particular percentage is based on whichever rating criteria most closely approximates the Veteran’s overall mental health disability picture. See 38 C.F.R. § 4.7. In his case, at the May 20, 2019 Board’s hearing, the Veteran stated under oath that his psychiatric symptomatology and the resulting severity levels of his functional impairment have worsened since the last VA examination in October 2015. Further, the Veteran’s VA treatment records reflect that he contacted a VA mental health clinic on May 21, 2019, at which point he requested to be seen by a psychologist. On July 2, 2019, following an evaluation of the Veteran’s mental health, the psychologist noted the Veteran’s report of having severe psychiatric symptoms and his current functioning being somewhat worse than average in most areas. The examiner further observed that, although the Veteran does have a friend and a son, which whom he keeps regular contacts, he is mostly a loner. The psychologist then specifically noted that the evaluation was a brief functional assessment of the Veteran’s behavioral health needs, while a more thorough evaluation for the VA compensation purposes will be afforded at a later date. Subsequently, the Veteran was afforded a November 2020 VA mental health evaluation for compensation purposes, based on which a rating at 70 percent was assigned and effectuated from the date of the examination. Here, the Board defers to the RO’s favorable findings that rating the Veteran’s psychiatric disability at 70 percent from November 26, 2019, is warranted, and further notes that the award of an increased rating may be effectuated from the earliest date as of which an increase in the severity levels of the disability is factually ascertainable. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). On May 20, 2019, the Veteran informed the Board of an increased severity levels of his psychiatric disability since the last VA examination in October 2015, which is supported by the June and October 2019 mental health evaluations. Accordingly, the Board finds that effectuating an award of a rating at 70 percent from May 20, 2019, is warranted. However, a rating in excess of 70 percent, that is, a total disability rating is not warranted at any time. Although it has been noted that the Veteran is mostly a loner and prefers isolation, given the facts that the Veteran has friends, including friends from high school and those with whom he worked (as reported by the Veteran at the October 2015 examination) and that he has been and still maintains social contacts with at least one friend as well as his adopted son (as reported at the July 2019 evaluation and confirmed at the November 2020 examination), the evidence of record affirmatively shows that the Veteran has not experienced a total (meaning all) social impairment at any time during the pendency of his appeal, which is the fundamental legal requirement for rating psychiatric disorder as totally disabling. Of further note, although the Veteran has been retired throughout the rating period on appeal, given the examiner’s opinion that the Veteran did not exhibit any signs of inability to take care of his active daily living, it also could not be said that the Veteran has experienced a total occupational impairment. As such, the Board finds that rating the Veteran’s psychiatric disorder as totally disabling at any time is not warranted. Also is not warranted a rating in excess of 30 percent prior to May 20, 2019. In sum, the evidence of record did suggest that the severity levels of the Veteran’s psychiatric symptomatology may have been more severe than shown on October 2015 VA examination, but the evidence of record ultimately fails to support a finding that prior to May 20, 2019, the resulting overall severity levels of social and occupational impairment were any more severe than the severity levels contemplated by the rating schedule at 30 percent. In reaching this conclusion, the Board has considered a January 2016 mental health intake report (received from Grand Rapids Vets Center in April 2016) reflecting an opinion that the Veteran seems to significantly minimize his symptoms which may be more severe than he realizes. However, symptoms sufficient to support a rating in excess of 30 percent were not described in the medical evidence prior to May 2019. In October 2015, the VA examiner, a duly licensed mental health professional, specifically noted that the Veteran “displayed fair insight into his PTSD and related emotions and behaviors.” Further, the October 2015 mental health evaluation is largely aligned with the January 2016 evaluation. For example, in January 2016, the Veteran was observed as feeling edgy, experiencing irritability, and having depressed mood with isolation, sleep disturbance, intrusive memories, poor memory and concentration, and occasional anxiety. In October 2015, the examiner acknowledged essentially the same symptoms, albeit expressed in the regulatory terms, such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. As such, there are no material discrepancies between the two reports, apart from a mere suggestion (without any degree of certainty) that the Veteran’s symptoms may be more severe than he realizes, which on its own does not provide sufficient basis for assigning a higher evaluation. Otherwise, the evidence of record is devoid of any subjective or objective symptomatology that the resulting functional impairment approximated a rating in excess of 30 percent. At the October 2015 evaluation, the examiner noted that the Veteran was casually dressed and appropriately groomed. He was alert and fully oriented. He was able to correctly spell “WORLD” forward and backward. He was not able to accurately complete serial 7s (e.g., 00-93-86-75-69-62). He was able to recall 1/3 words after delay and 2/3 with prompting. He was cooperative with the assessment process. The Veteran’s mood and affect were subdued. He displayed good eye contact. His speech was normal in rate and tone, spontaneous and goal-directed. His thought processes were generally organized with no evidence of formal thought disorders, hallucinations, delusions, mania, or obsessive-compulsive features. He appeared to be of average intelligence, capable of abstract thinking, and displayed fair insight into his PTSD and related emotions and behaviors. The Veteran further displayed no difficulties with activities of daily living due to his mental health issues. Then, the PTSD Checklist-5 (PCL-5) was administered to gauge current signs and symptoms of traumatic stress. The Veteran endorsed the following symptom as bothering him extremely: being “super alert” or watchful or on guard, or expressed in regulatory terms, being hypervigilant. He endorsed the following symptoms as bothering him quite a bit: repeated, disturbing dreams of the stressful experience; feeling very upset when something reminded him of the stressful experience; feeling jumpy or easily startled; and trouble falling or staying asleep, which translates into regulatory language of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. He endorsed the following symptoms as bothering him moderately: repeated, disturbing, and unwanted memories of the stressful experience; suddenly feeling or acting as if the stressful experience were actually happening again; having strong physical reactions when something reminded him of the stressful experience; avoiding external reminders of the stressful experience; trouble remembering important parts of the stressful experience; having strong negative feelings such as fear, horror, anger, guilt, or shame; irritable behavior, angry outbursts, or acting aggressively; taking too many risks or doing things that could cause self-harm; and having difficulty concentrating. This most closely approximates flashbacks, intrusive memories, and avoidance. All other symptoms endorsed by Veteran were bothering him a little bit: having strong negative beliefs about himself, others, or the world, or not at all (e.g., avoiding memories, thoughts, or feelings related to the stressful experience; blaming himself or someone else for the stressful experience or what happened after; loss of interest in activities he used to enjoy; feeling distant or cutoff from others; and trouble experiencing positive feelings), that is, a mild anhedonia that may be associated with intermittent depressed mood. The examiner noted that the Veteran has been placed on psychotropic medications for control of his depression symptoms. Further, the examiner thoroughly reviewed the results of the in-person interview and testing, along with the examiner’s professional observations and the Veteran’s own reports of symptomatology, his medical, occupational, and social history, and his medical treatment records. Upon considering the comprehensive data, the examiner opined that an overall severity level of the Veteran’s psychiatric disorder most closely approximated 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. This severity level of functional impairment due to the Veteran’s psychiatric symptoms squarely meets the rating criteria at no higher than 30 percent. For example, a continuous use of medications for control of psychiatric symptoms is rated at 10 percent, while depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss, are all listed as the symptoms at 30 percent. The Veteran has neither challenged the October 2015 medical opinion nor provided any evidence to the contrary. Otherwise, the record is ultimately devoid of any evidence to place into doubt the adequacy of the October 2015 Veteran’s mental evaluation or accuracy of its report. Essentially, prior to November 2019, the October 2015 mental health evaluation report is the only competent and credible evidence comprehensively addressing the severity levels of the Veteran’s social and occupational impairment, which is the ultimate gauge for assigning a particular percentage. Further, the first piece of the material evidence of record, from which it is factually ascertainable that the Veteran’s disability has actually worsened, is his sworn statement made to the Board on May 20, 2019. His VA medical treatment records from November 2015 to April 2019, albeit reflecting his continuous use of medications, do not specifically address the severity levels of his psychiatric symptomatology or the resulting severity levels of his social and occupational impairment at any time during this period. The Veteran has been offered, but ultimately elected not to attend, group or individual therapy and did not seek any treatment during that timeframe. By implication, the Board has found no factual basis to award a rating in excess of 30 percent prior to May 20, 2019, or in excess of 70 percent thereafter. Accordingly, a rating for psychiatric disorder at 70 percent, but not higher, from May 20, 2019, but not earlier, is granted. A rating in excess of 30 percent prior to May 20, 2019 is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.