Citation Nr: 21008997 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-31 284 DATE: February 18, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for acquired psychiatric disorders, including posttraumatic stress disorder (PTSD) and depressive disorder, prior to May 18, 2017, is denied. FINDING OF FACT Prior to May 18, 2017, the Veteran’s service-connected acquired psychiatric disorders, including PTSD and depressive disorder, was not manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to May 18, 2017, the criteria for entitlement to an initial rating in excess of 30 percent for acquired psychiatric disorders, including PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to July 1995. The issue on appeal originate from a January 2010 claim. In a September 2019 decision, the Board declined to grant an increased rating for PTSD prior to May 18, 2017. A July 2020 Court of Appeals for Veterans Claims (CAVC) order vacated the Board’s decision regarding this issue, and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. This issue is once again before the Board for further adjudication. 1. Entitlement to a rating in excess of 30 percent for acquired psychiatric disorders, including PTSD and depressive disorder, prior to May 18, 2017 Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability over the time period beginning one year before the claim was filed through the final decision on that claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Separate evaluations may be assigned for separate time periods based on the facts found in the record. Fenderson v. West, 12 Vet. App. 119 (1999). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, the Veteran’s PTSD is rated as 30 percent disabling prior to May 18, 2017, under DC 9411. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 30 percent rating for acquired psychiatric disorders is assigned where there is evidence of 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 conversational normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). 38 C.F.R. § 4.130, DCs 9201-9440, General Rating Formula for Mental Disorders. A 50 percent rating is assigned where there is evidence of 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned where there is evidence of 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; obsession 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned for 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. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to “DSM-IV,” Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fourth Edition (1994). The amendments replace those references with references to the recently updated “DSM-5.” However, as the Veteran’s claim was certified to the Board in February 2014 (i.e., prior to August 4, 2014), the DSM-IV is applicable to this case. The Veteran originally filed his claim for entitlement to PTSD in January 2010. At that time, he was receiving private treatment for symptoms of fatigue, depression and anxiety. See November and March 2008 Private Medical Records. September 2010 VA treatment records reflect that the Veteran underwent an examination by a psychiatrist and reported “only fleeting thoughts of suicide.” However, this VA psychiatrist provided the expert opinion that suicidal ideation was absent in the Veteran’s case. Additionally, prior to May 18, 2017, VA treatment records reflect that the Veteran denied any suicidal ideation on many occasions, and clinicians consistently noted no suicidal thoughts or planning by the Veteran. See, e.g., June 2010, November 2010, December 2010, April 2011, November 2011, March 2012, April 2012, May 2012, August 2012, April 2013, September 2013, November 2013, January 2014, February 2014, March 2014, May 2014, July 2014, August 2014, November 2014, December 2014, January 2015, May 2015, August 2015, November 2015, December 2015, January 2016, February 2016, April 2016, May 2016, July 2016, August 2016, September 2016, November 2016, January 2017, February 2017, March 2017, and April 2017 VA Treatment records. During a December 2010 VA examination, the Veteran was diagnosed with chronic PTSD. The Veteran reported a close relationship with his sister, and an “all right” relationship with his father. While he had been divorced twice, he had begun to date someone in the past month. The Veteran reported working 60-to-70 hours per week. During the examination, he was clean and appropriately dressed; had unremarkable speech, psychomotor activity, thought process, and thought content; had intact orientation and normal memory; and was cooperative with a full affect and depressed mood. The Veteran reported no panic attacks and no suicidal ideation. His PTSD symptoms included avoidance behavior; difficulty sleeping; irritability; and hypervigilance. The examiner noted that the Veteran’s occupational and functional impairment included going to work tired. The Veteran reported that he did not know if his PTSD symptoms were affecting his work at that time. The examiner determined that the Veteran had occasional decrease in work efficiency with intermittent periods of inability to perform occupation tasks, but with generally satisfactory functioning. From August 2010 to May 2017, the Veteran’s VA treatment records reflect PTSD symptoms of irritability, hyperarousal, hypervigilance, increased anxiety, avoidance, and detachment. He was working 50 to 100+ hours a week, coached lacrosse but did not spend time with friends. See December 2010, November 2011, March and May 2012, and April 2013 VA Treatment Records. Some VA treatment records during that time period indicated that the Veteran had a “variable but better mood” with good motivation and poor self-esteem. See, e.g., April 2013 VA Treatment Records. He reported concentrating better and sleeping better. See August 2015 and December 2014 VA Treatment Records. He also reported an “okay” relationship with a significant other. See December 2015 VA Treatment Records. He also reported occasional panic attacks. Id. He further reported focusing on work with an improvement in focus, organization and task completion with a prescription of Adderall XR. See January 2016 VA Treatment Records. During this time period, the Veteran also reported some difficulties with romantic relationships, including two divorces. See, e.g., March 2012, November 2014, February 2016, and January 2017 VA Treatment Records. The Board notes that January 2016 VA treatment records reflect that the Veteran and his girlfriend separated amicably after five years. VA treatment records reflect that the Veteran experienced some panic attacks, including two in two years after a December 2011 surgery. See, e.g., March 2012, April 2012, and February 2016 VA Treatment Records. November 2013 VA treatment records indicate that the Veteran reported “having a lot of panic attacks, waking up at night.” However, other VA treatment records indicate that the Veteran went periods of time with no panic attacks. See, e.g., May 2012, July 2014 VA Treatment Records. At his May 18, 2017, hearing, the Veteran indicated that his condition had worsened, requiring him to reduce his hours of employment. He reported that he suffered panic attacks three to four times per week, and experiences increased insomnia, irritability, and occasional issues with memory. Moreover, the Veteran reported having trouble maintaining effective relationships as he stated that he used to have friends, and now only spoke with military friends. The Board notes that as of May 18, 2017, the Veteran’s PTSD is rated as 70 percent disabling, as the Veteran’s testimony before the undersigned represents the time period when it can be factually ascertained that his PTSD symptomatology increased to a higher compensable level. According to 38 C.F.R. § 4.126, ratings of mental disorders shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. Prior to May 18, 2017, the Veteran manifested symptoms of fatigue, depression, anxiety, avoidance behavior, difficulty sleeping, irritability, and hypervigilance, hyperarousal, detachment, suicidal ideation, poor self-esteem and panic attacks. The Board notes that mentioned fleeting thoughts of suicide is an example supporting a 70 percent rating, and panic attacks occurring more than once a week is an example supporting a 50 percent rating. He had relational difficulties including a split with a girlfriend of five years. However, the Board must consider the frequency, duration and severity of these symptoms with its effects on the Veteran’s occupational and social impairment during this time period. At the time the Veteran endorsed suicidal ideation in 2010, the Veteran’s psychiatrist determined there was no suicidal ideation. See September 2010 VA Treatment Records. Subsequently, a VA examiner in December 2010 found that the Veteran’s overall PTSD symptomatology resulted in occasional decrease in work efficiency with intermittent periods of inability to perform occupation tasks, but with generally satisfactory functioning. Thereafter, VA treatment records contain at least 37 additional entries prior to May 18, 2017, where the Veteran specifically denied suicidal thoughts and/or his treating physician determined there was no suicidal ideation. There was no lay evidence that the Veteran represented a harm risk to himself or others. The Veteran’s panic attacks interfered with his sleep and, notably, chronic sleep impairment is an example supporting a 30 percent rating. His panic attacks did not rise to the level of effecting his ability to function independently. Rather, during this time period, the Veteran coached lacrosse, and worked full time, including a reported 100+ hours a week at one point. He described good motivation, an “okay” relationship with another, and being able to focus on work. Overall, since the December 2010 VA expert opinion, the Veteran demonstrated an increased capacity to work, demonstrated effective relations by coaching lacrosse but had some decrease in romantic relations although he had an “okay” relationship as of December 2015. Overall, when considering the frequency, duration and severity of all symptoms and its effects on occupational and social impairment, the Board finds that the Veteran’s service-connected acquired psychiatric disorders, including PTSD and depressive disorder, was not manifested by occupational and social impairment with reduced reliability and productivity. In so holding, the Veteran’s descriptions of symptoms and occupational and social impairment and capacity are deemed credible. Throughout this time period, the Veteran successfully worked full-time, coached lacrosse and maintained some social relations. Therefore, the evidence of record does not reflect symptomology rising to the level of occupational and social impairment with reduced reliability and productivity. Entitlement to a rating in excess of 30 percent prior to May 18, 2017, is not warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.