Citation Nr: 21010490 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-44 733 DATE: February 25, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for an unspecified trauma and stressor-related disorder (acquired psychiatric disorder) prior to January 10, 2020, is granted. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder after January 10, 2020, is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left hip condition is remanded. FINDING OF FACT Throughout the entire appeal period, the Veteran’s acquired psychiatric disorder was characterized by occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 70 percent rating, but no higher, for an acquired psychiatric disorder prior to January 10, 2020, have been met. 8 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to an initial rating in excess of 70 percent for an acquired psychiatric disorder after January 10, 2020, have not been met. 8 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 2001 to April 2015. In September 2019, the Board of Veterans’ Appeals (Board) remanded the issues of entitlement to increased ratings for the Veteran’s acquired psychiatric disorder and left hip condition for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for VA examinations pertaining to his claims. As an initial matter, the Board notes that the RO issued a rating decision in July 2020 that increased the rating of the Veteran’s acquired psychiatric disorder to 70 percent, effective January 10, 2020, and the rating of the Veteran’s left hip condition to 10 percent, effective, May 1, 2015. However, as this action did not constitute a full grant of the benefits sought, the claims for increased ratings remains before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Rating 1. Acquired psychiatric disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, from December 24, 2002 in this case. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7. The Veteran’s service-connected acquired psychiatric disorder has been rated under DC 9434, which provides that a 30 percent rating is warranted when there is 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 conversation 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 recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. Id. 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating an acquired psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the 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. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).  As an initial matter, the Board notes that the Veteran’s acquired psychiatric disorder has been rated at 30 percent from May 1, 2015 and increased to 70 percent from January 10, 2020. He contends that higher initial ratings are warranted. In determining whether the Veteran’s acquired psychiatric disorder was rated appropriately, the Board has thoroughly reviewed the evidence of record and finds that the Veteran’s acquired psychiatric disorder has more nearly approximated the criteria for a 70 percent rating prior to January 10, 2020, but preponderance of the evidence is against finding that a rating in excess of 70 percent is warranted for the entire period on appeal. The Veteran underwent a VA examination in March 2016, in which he reported being married for nearly 16 years, that he has two children, and has positive relationships with his wife and children. He also reported having close relationships with his wife’s family as he sees them regularly, as well as having friends who he sees occasionally. Finally, he reported being well satisfied with his social and family life. The Veteran had been self-employed since the summer of 2015. The March 2016 examiner noted the Veteran’s symptoms included anxiety and chronic sleep impairment and that the Veteran’s mental health symptoms do not appear to be causing many significant problems in his daily functioning. He concluded that the Veteran’s acquired psychiatric disorder manifested with occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. However, the Veteran stated that he had difficulty concentrating and sleeping, with chronic irritability and anger, and that he may have difficulty working with customers currently. In the Veteran’s August 2016 VA Form 9, he reported that he snaps without reason, feels alone, and does not trust anyone. Additionally, he had thoughts about suicide since he was in the military. At his December 2018 Board hearing, the Veteran, his spouse, and his son testified as to his symptoms. The Veteran’s spouse testified that since the Veteran returned from service, he was easily aggravated and suspicious. His son testified that the Veteran was agitated and jumpy with loud noises. The Veteran testified that he felt depressed and experienced suicidal depression; both he and his spouse testified that he mentioned being suicidal just the week prior. See December 2018 Hearing Transcript, pp. 13-14. The Veteran appeared for another VA examination in January 2020. The Veteran reported that he was currently living alone because he has been separated from his wife for the past few months, but he still has friends that he enjoys watching sports and going fishing together. He worked as a security guard at a mine at the end of 2016 before working as a diesel mechanic in the same mine in 2019. The January 2020 examiner noted the Veteran’s symptoms as anxiety, chronic sleep impairment, mild memory loss, flattened affect, difficulty adapting to stressful circumstances, and spatial disorientation. Upon mental status examination, the July 2020 examiner found the Veteran was appropriately oriented to his surroundings and was casually dressed. He concluded the Veteran’s acquired psychiatric disorder manifested as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He noted that the Veteran did not appear to pose any threat of danger or injury to himself or others. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s condition more nearly approximates that required for a 70 percent disability rating prior to January 10, 2020. In particular, the Board finds that the Veteran has experienced suicidal ideation since he was in service, and this symptomatology rises to the level of that contemplated by the 70 percent disability rating. Combined with the Veteran’s other symptoms that include anxiety, unprovoked irritability, anger, suspiciousness, depression, and chronic sleep impairment, the Board finds that the Veteran’s overall disability picture is best characterized as occupational and social impairment with deficiencies in most areas. On the other hand, the preponderance of the evidence demonstrates that the Veteran’s psychiatric symptoms have not risen to the severity, frequency, and duration required for a 100 percent schedular rating for the entire appeal period, which contemplates “total” occupational AND social impairment. Notably, as stated above, despite his serious symptomatology, the Veteran has maintained some positive relationships with his family and friends, and thus cannot be said to be totally socially impaired. In addition, despite his challenges, the Veteran has not demonstrated total occupational impairment as he has been able to maintain employment. Moreover, although not dispositive of the issue, the Board notes that the Veteran has not exhibited gross impairment of thought processes and has been shown to be able to communicate clearly; there is no evidence to indicate grossly inappropriate behavior or an inability to perform activities of daily living. The evidence does not indicate that the Veteran’s suicidal ideation rises to a level reflecting a persistent harm to himself or others as no plans or attempts were ever made, and there are no other symptoms of such severity to result in the Veteran’s total occupational and social impairment. For all the foregoing reasons, and affording the Veteran the benefit of the doubt, the evidence shows that the overall impairment caused by his acquired psychiatric disorder more nearly approximates occupational and social impairment with deficiencies in most areas. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Accordingly, an initial rating of 70 percent, but no higher, is granted for the period prior to January 10, 2020. However, a rating in excess of 70 percent is not warranted for the entire appeal period, and the claim for an increased rating for the period after January 10, 2020 must be denied. REASONS FOR REMAND 3. Left hip condition Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. The Board finds that a new examination is warranted for the Veteran’s claim. He contends that a higher rating is warranted for his left hip condition. The Veteran underwent a VA examination in February 2020, in which the examiner noted the Veteran denied any significant flare-ups. However, the examiner also noted that the Veteran reported pain and discomfort when climbing. She did not provide any responses under the question of whether there was any evidence of pain with weight-bearing with the Veteran’s left hip condition. The Board finds the February 2020 examination inadequate to assess the Veteran’s claim. The examiner made contradictory findings in noting that the Veteran experienced pain and discomfort when climbing but noted the Veteran denied flare-ups. Furthermore, the examiner must state whether the Veteran has pain with weight-bearing. Accordingly, remand for a new examination that adequately addresses the severity of the Veteran’s left hip condition is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file updated treatment records. 2. Schedule the Veteran for an examination to determine the severity of his left hip condition. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s left hip condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran’s right shoulder on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the left hip is used repeatedly over a period of time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.