Citation Nr: 21014292 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-27 990 DATE: March 11, 2021 ORDER Entitlement to an initial disability rating of 50 percent for a psychiatric disability prior to August 13, 2020, is granted. Entitlement to a disability rating in excess of 50 percent for a psychiatric disability is denied. FINDINGS OF FACT 1. Prior to August 13, 2020, the Veteran’s psychiatric disability symptoms more nearly approximated the criteria of a 50 percent rating, causing occupational and social impairment with reduced reliability and productivity 2. The Veteran’s psychiatric disability has not caused total occupational and social impairment or deficiencies in most areas at any time during the appeal period. CONCLUSIONS OF LAW 1. Prior to August 13, 2020, the criteria for entitlement to an initial disability rating of 50 percent for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.125, 4.126, 4.130, Diagnostic Code 9400, 9413. 2. The criteria for entitlement to an initial disability rating greater than 50 percent, for a psychiatric disability, for any part of the appeal period, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.125, 4.126, 4.130, Diagnostic Code 9400, 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from September 2001 to December 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). During the pendency of the appeal, a September 2020 rating decision increased the disability rating to 50 percent effective from August 2020. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board in July 2020 and August 2018. The most recent VA examination was performed in August 2020 and adequately addresses the directives from the July 2020 Board remand. Accordingly, the Board finds that there has been substantial compliance with the most recent Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). I. Duty to Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Entitlement to an initial disability rating of 50 percent, but no higher, for a psychiatric disability Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran was initially assigned a 30 percent disability rating in December 2014 for insomnia with generalized anxiety disorder effective July 24, 2014, under 38 C.F.R. § 4.130, Diagnostic Code 9413. In September 2020, the AOJ recharacterized the Veteran’s disability claim as other specified trauma and stressor related disorder and increased his disability rating to 50 percent beginning on August 13, 2020, under 38 C.F.R. § 4.130, Diagnostic Code 9400. Both Diagnostic Codes apply the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 50 percent rating is assigned when a veteran’s psychiatric disability causes 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-term 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. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. The maximum schedular rating of 100 percent is warranted 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, own occupation or own name. 38 C.F.R. § 4.130. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths 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 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. Id. However, 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 on the basis of social impairment. 38 C.F.R. § 4.126 (b). Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. The record contains a Global Assessment of Functioning (GAF) score assigned by a mental health professional who has evaluated the Veteran. The GAF is a scale reflecting the psychological, social, and occupational functioning based on a hypothetic continuum of mental health illness. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed.) (DSM-IV). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by replacing references to DSM-IV with the Fifth Edition of the DSM (DSM-5). See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45099 (effective Aug. 4, 2014). Although the DSM-5 no longer uses the GAF scale to assess functioning, the DSM-IV was in effect at the time the GAF score was assigned. Therefore, the Board will consider the GAF score in evaluating the Veteran’s occupational and social functioning. However, an examiner’s classification of the level of psychiatric impairment, by word or by a GAF score, is not determinative of the VA disability rating to be assigned. See Carpenter v. Brown, 8 Vet. App. 240 (1995). The percentage evaluation is to be based on all of the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126; VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Turning to the evidence, the Veteran maintains that his psychiatric disability is more severe than has been assessed. In a statement from February 2015, he reported that he had a full-time job, but he frequently uses sick days because he finds himself paralyzed by the tasks he must complete at work. He also reported that only spends time at home outside of work because it is the only environment where he feels safe. He indicated that he has no friends outside of work, has problems committing in romantic relationships, and rarely sees his family. Additionally, he reported that he regularly forgets the names of close friends, family members, and colleagues, and has difficulty with dates and figures. He also reported that he becomes enraged with people for no reason, struggles with grocery shopping due to anxiety in public spaces, and experiences times when he has no energy to bathe or feed himself. A review of the evidence shows that the Veteran underwent an initial mental health evaluation in May 2014 and a comprehensive psychiatric evaluation in June 2014. He complained of trouble sleeping with recurring nightmares and difficulty with social situations since 2006. He also reported feeling anxious almost every day with irritability, a nervous tick, and fidgeting. At the psychiatric evaluation, he appeared anxious with circumstantial thoughts at times. Otherwise, his mental status was normal with intact memory, good comprehension, normal speech, and no suicidal ideation, hallucinations, or delusions. The examiner assigned the Veteran a GAF score of 65, which corresponds to mild symptoms or some difficulty in social, occupational, or school functioning. From July 2014 to March 2015, the Veteran engaged in cognitive behavioral therapy (CBT) on a frequent and consistent basis. In these visits, the Veteran consistently presented with normal mental status, including euthymic or cooperative moods, goal directed thought processes, good insight, judgement, memory, and concentration, and no suicidal ideation, delusions, or hallucinations. However, he consistently complained of chronic sleep problems with nightmares and difficulty falling asleep. He also complained of memory issues, heightened anxiety surrounding social situations, and irritability with road rage. The Veteran was encouraged to enter social situations as a part of his therapy, though he experienced difficulty with this assignment. For example, he attempted to visit a store on two occasions, but he only actually went in and purchased items once. On his second attempt, he did not enter the store because it was too crowded. On another occasion, the Veteran successfully attended a festival, but he reported exhaustion and needed the entire weekend to recover. The Veteran’s symptoms improved with treatment and he was encouraged to reduce the frequency of his visits in November 2014. However, he was assessed with occupational and social impairment during a VA examination in November 2014. The examiner diagnosed the Veteran with insomnia and generalized anxiety disorder, and he documented symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner concluded that he could not differentiate which of the Veteran’s symptoms were attributed to each diagnosis. He further concluded that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity. The Veteran continued to pursue therapy through March 2015 and treating notes indicate that he was functioning at a high level. However, the Veteran continued to complain of depression, memory problems, poor sleep, and difficulty socializing. In July 2015, a private psychologist, J.F., Ph.D., evaluated the Veteran and submitted a disability benefits questionnaire in connection with the Veteran’s disability claim. This examiner diagnosed the Veteran with generalized anxiety disorder, recurrent major depressive disorder of moderate severity, and unspecified anxiety disorder with posttraumatic stress disorder (PTSD) and panic features. This examiner noted symptoms of anxiety, depressed mood, panic attacks that occur weekly or less, chronic sleep impairment, and disturbances of motivation and mood. The examiner also noted that the Veteran’s social interactions and activities are limited, and anxiety affects his routines and habits in efforts to avoid crowds. The examiner concluded that the Veteran’s symptoms cause occupational and social impairment with decrease in work efficiency and intermittent periods of inability to perform occupational tasks. While there is no additional record of mental health treatment, the Veteran was treated in the emergency department in November 2016 for altered mental status. At this time, the Veteran had an unexplained episode with a headache where he could not remember names of any family members, his dog, or his girlfriend. The Veteran was assessed with resolved altered mental status after diagnostic testing showed no abnormalities, and he was discharged without further treatment. Occupationally, the record reveals that the Veteran was enrolled in a vocational rehabilitation from 2015 to 2017. With the assistance of this program, the Veteran obtained a master’s degree in diplomacy. He also obtained work as an intelligence analyst, an administrative officer doing diplomatic relations, and a veterans’ treatment court mentor/resource coordinator. The Veteran was discharged from the vocational rehabilitation program in September 2017, at which point he was considered rehabilitated. In August 2020, the Veteran was evaluated by another VA examiner, who concluded that that the Veteran continues to have social and occupational limits. This examiner diagnosed the Veteran with other specified trauma-and-stressor-related disorder and she documented symptoms of depressed mood, anxiety, chronic sleep impairment, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner noted that the Veteran reported having a calm relationship with his girlfriend and hobbies of cooking and reading. However, she also noted that the Veteran reported ongoing social problems, describing himself as difficult to get along with and judgmental. She also indicated that the Veteran reported burning out at work, noting that he has a history of resigning and has had 11 jobs within the prior 12 years. Ultimately, the examiner concluded that the Veteran has occupational and social impairment with reduced reliability and productivity. Based on the above evidence of record, the Board concludes that a 50 percent rating, but no higher, is warranted for the period prior to August 13, 2020, and that a higher rating than 50 percent is not warranted at any time during the appeal period. In July 2015, the private psychologist found that the Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency, which corresponds to a 30 percent rating. However, the November 2014 and August 2020 VA examiners concluded that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity, which is consistent with a disability rating of 50 percent. The record demonstrates that the Veteran’s symptoms and functional impairment are more closely aligned with a finding of occupational and social impairment with reduced reliability and productivity, as concluded by the VA examiners. The August 2020 examiner documented symptoms including difficulty establishing and maintaining effective work relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. Consistent with this finding, the Veteran reported in his February 2015 statement that he finds himself paralyzed by the tasks he must complete at work. The Veteran also reported that he only spends time at home where he feels safe, has no friends outside of work, has problems committing in romantic relationships, and rarely sees his family. While the Veteran was assessed with only mild symptoms with a GAF score of 65 during his initial psychiatric visit and presented consistently with normal mental status in therapy visits, all of his records document difficulty being in social situations. Notably, the Veteran’s has attempted to immerse himself in social situations as a part of treatment with limited success. Moreover, the Veteran complained of memory issues in therapy and he was treated for an isolated incident of altered mental status, where he could not remember names of any family members, his dog, or his girlfriend. Additionally, the record demonstrates that the Veteran completed a master’s degree and obtained employment through vocational rehabilitation during the relevant period. However, the Veteran has also had 11 jobs over the past 12 years, which supports a finding that he has difficulty maintaining stable work. Accordingly, the Board concludes that the preponderance of evidence supports a finding that the Veteran’s symptoms more nearly approximated the criteria for a 50 percent rating prior to August 13, 2020. However, the Board finds that a rating greater than 50 percent is not warranted at any time during the appeal. The Veteran has demonstrated that he has some difficulty adapting to stressful situations, as he has not maintained a job for more than a year or two in the past twelve years. However, he completed a master’s program in diplomacy and maintained fulltime employment during the period on appeal. Additionally, the Veteran complained of some impulse control issues in the form of road rage, but there is no indication that he has ever acted on his impulses. He had an isolated incident where he experienced memory loss for the names of his family members, dog, and girlfriend, but it resolved without recurrence. The Veteran also reported that he regularly forgets names of close friends, family members and colleagues, but he consistently presented with good memory during therapy visits. Similarly, he complained of difficulty performing activities of daily living (including maintaining personal hygiene), but he consistently presented in treating visits as well groomed and there is no indication that this has been a problem during his employment. Furthermore, the record demonstrates that the Veteran consistently denied suicidal ideation, delusions, and hallucinations during therapy visit and his speech and thought processes were consistently normal with the exception of his initial psychiatric evaluation. He also consistently presented in therapy visits with euthymic or cooperative moods and good insight, judgement, memory, and concentration. Meanwhile, the record does not document near continuous panic, depression affecting the Veteran’s ability to function independently, appropriately, and effectively, grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place. Moreover, no examiner has concluded that the Veteran’s symptoms cause total occupational or social impairment or deficiencies in most areas. In fact review of the record shows that he does have difficulties in social situations, but has some relationship with his family, has had a girlfriend since 2015, and has not been fired from jobs due to his psychiatric condition but has chosen to pursue another position and has been able to obtain a new position. Further, there is no evidence of impairment of judgement, despite his irritability and rage, and no impairment of thinking. While he has been noted to have a disturbance of mood, looking at his overall symptoms, the Board does not find that they equate in severity, frequency or duration to the criteria for a 70 percent rating. Further, the Board notes that the 50 percent criteria contemplate disturbance of mood. This rating also encompasses his memory impairment and his difficulty in social relationships. Because the Veteran does not have total social and occupational impairment or deficiencies in most areas, and the criteria for a 50 percent evaluation most nearly approximates the Veteran’s symptomatology, the Board finds that a rating higher than 50 percent is not warranted. In sum, the Board concludes a 50 percent rating is warranted for the period prior to August 13, 2020. However, the preponderance of evidence is against a finding that a rating greater than 50 percent is warranted at any time during the appeal period. Accordingly, a 50 percent rating, but no higher, is granted for the period prior to August 13, 2020, and a higher rating is denied thereafter. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, 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.