Citation Nr: 21012995 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-58 672 DATE: March 8, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder for the period since June 20, 2018 is denied. FINDING OF FACT For the period since June 20, 2018, the Veteran’s acquired psychiatric disorder has been productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder for the period since June 20, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1957 to April 1961. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision in April 2016 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran’s claim for an increased rating for his acquired psychiatric disorder for the period after June 20, 2018 was previously before the Board in October 2019. At that time, the claim was remanded to obtain an updated VA examination to determine the current nature and severity of the Veteran’s acquired psychiatric disorder. The record reflects that the Veteran was afforded a VA examination for his acquired psychiatric disorder in November 2019. Accordingly, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Increased rating for an acquired psychiatric disorder for the period since June 20, 2018 Generally, disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Veteran is rated at 30 percent for his acquired psychiatric disorder pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. As noted, the claim for an increased rating for the period after June 20, 2018 was remanded based on the Veteran’s hearing testimony that his symptoms have gotten worse since his VA examination in June 2018. Diagnostic Code 9434 provides a 30 percent rating where 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; mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is 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. A 70 percent rating is assigned for 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 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. A 100 percent 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. 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. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Even considering the Veteran’s hearing testimony, a review of the evidence on balance reveals that the Veteran’s acquired psychiatric disorder symptoms since June 2018 are productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, warranting no more than a 30 percent rating. Following the October 2019 remand, the Veteran was afforded a VA examination in November 2019. The Veteran reported to the examiner that he remained married, was retired and spent his time being active in his church, playing music, going on long walks and traveling. The examiner noted that the Veteran had not undergone any psychiatric treatment since his June 2018 VA examination. No legal, behavioral or substance abuse histories were noted, and the Veteran’s only reported symptom was anxiety. The examiner described the Veteran as casually dressed and well-groomed with fluent speech and a logical and coherent thought process. The examiner assessed the severity of the Veteran’s psychiatric condition as having a formally diagnosed mental condition, but symptoms not severe enough to either interfere with occupational and social functioning or to require continuous medication. A November 2019 VA examination for the Veteran’s traumatic brain injury claim noted that he experienced “emotional upset” but did not have complaints of memory, attention, concentration or executive function impairment, had normal judgment and routinely appropriate social interactions. VA treatment records from September 2018 and March 2019 noted the Veteran’s depression, indicated that the Veteran denied any suicidal or homicidal ideation and reported that he had a “good support and belief system.” After careful review of the evidence, the Board finds that the Veteran’s acquired psychiatric disorder has been productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks for the period since June 20, 2018. As described above, the Veteran’s symptoms are limited to anxiety and, while the Board acknowledges his testimony that his anxiety has increased and that he has “occasional” panic attacks, the evidence does not reflect that he has had a flattened affect, difficulty in establishing and maintaining effective relationships, panic attacks more than once a week, circumstantial, circumlocutory or stereotyped speech, impaired judgment, impaired abstract thinking or other markers of reduced reliability and productivity. Accordingly, the Board finds that the Veteran’s acquired psychiatric disorder more nearly approximated the schedular criteria for a disability rating of 30 percent. In so finding, the Board considered the frequency, severity and duration of the Veteran’s impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.