Citation Nr: 21014501 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-53 918 DATE: March 12, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to May 30, 2019; in excess of 50 percent as of May 30, 2019; and in excess of 70 percent as of December 30, 2020, for posttraumatic stress disorder (PTSD), major depressive disorder, alcohol use disorder, and gambling disorder is denied. FINDING OF FACT 1. Prior to May 30, 2019, the psychiatric disability was productive 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 conversation normal), but not occupational and social impairment with reduced reliability and productivity. 2. As of May 30, 2019, the psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity but not occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. As of December 30, 2020, resolving reasonable doubt in favor of the Veteran, the psychiatric disability resulted in occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent, prior to May 30, 2019, for posttraumatic stress disorder, major depressive disorder, alcohol use disorder, and gambling disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a rating in excess of 50 percent, effective May 30, 2019, for posttraumatic stress disorder, major depressive disorder, alcohol use disorder, and gambling disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a rating in excess of 70 percent, effective December 30, 2020, for posttraumatic stress disorder, major depressive disorder, alcohol use disorder, and gambling disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1960 to November 1963 and from November 1964 to October 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In June 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In July 2018 and July 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. A May 2020 rating decision increased the rating for the psychiatric disabilities from 30 percent to 50 percent, effective May 30, 2019. A January 2021 rating decision increased the rating for the psychiatric disabilities from 50 percent to 70 percent, effective December 30, 2020. A claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that a claim remains in controversy where less than the maximum available benefit is awarded, or until the Veteran withdraws the claim. AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue of entitlement to a higher rating for a psychiatric disability remains on appeal. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §§ 20.900(c); 38 U.S.C. §§ 7107(a)(2). 1. Entitlement to increased ratings for a psychiatric disability. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to rate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The review is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The service-connected posttraumatic stress disorder (PTSD), major depressive disorder, alcohol use disorder, and gambling disorder has been rated under the provisions of Diagnostic Code 9411, using the General Rating Formula for Mental Disorders. Under the provisions of Diagnostic Code 9411 and the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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 rating is warranted for 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 warranted for occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the General Rating Formula for Mental Disorders 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 (2002). Considerations in rating a mental disorder include 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 must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The posttraumatic stress disorder (PTSD), major depressive disorder, alcohol use disorder, and gambling disorder is currently assigned a 30 percent rating prior to May 30, 2019; a 50 percent rating as of May 30, 2019; and a 70 percent rating as of December 30, 2020. The Veteran contends that ratings assigned for a service- connected psychiatric disability do not accurately compensate the severity of the psychiatric disability, and that higher ratings are warranted. After review of the relevant medical and lay evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that, prior to May 30, 2019, the psychiatric disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Therefore, the Board finds that, prior to May 30, 2019, the psychiatric disability warranted no more than a 30 percent rating. Therefore, the claim for a rating in excess of 30 percent for a psychiatric disability, prior to May 30, 2019, must be denied. The Board further finds that, as of May 30, 2019, the psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that, as of May 30, 2019, the psychiatric disability warrants no more than a 50 percent rating. Therefore, the claim for a rating in excess of 50 percent for a psychiatric disability, as of May 30, 2019, must be denied. The Board also finds that, as of December 30, 2020, the psychiatric disability is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Therefore, the claim for a rating in excess of 70 percent for a psychiatric condition, as of December 30, 2020, must be denied. The Board finds that at no point during the course of the appeal has the psychiatric disability been productive of total occupational and social impairment. Therefore, any claim for a rating in excess of 70 percent for a psychiatric disability must be denied. In a November 2013 mental health note, the Veteran reported being depressed, irritable, and sleep deprived. Mental status examination showed the Veteran as being alert, attentive, and oriented times three. The Veteran was cooperative, reasonable, and appropriately groomed. Speech was normal. Mood was depressed and affect was flat. The Veteran did not exhibit perceptual disturbance or abnormal thought content. The Veteran did not have suicidal ideation. Insight and judgment were good. Memory was intact. In a February 2014 mental health note, the Veteran was described as well-groomed with good hygiene. His psychomotor activity was normal, and his speech was conversational but low in rate and volume. His affect was constricted. Thought processes were logical and goal directed. The Veteran did not have delusions, obsessions, suicidal ideation, or homicidal ideation. The Veteran did have some feelings of helplessness, hopelessness, intrusive thoughts, and nightmares. The Veteran was oriented times four, with an intact memory, average fund of knowledge, good attention and concentration and fair insight and judgment. At an April 2014 VA examination, the Veteran was noted as experiencing sleep disturbances, irritable behavior, and angry outbursts. The Veteran reported having two sisters and a half-brother. The Veteran also reported having a girlfriend for the past 12 years and one friend. The Veteran stated he had difficulty keeping friends because of his behavior. At the time of the examination, the Veteran was casually dressed with adequate hygiene. His behavior and speech were noted as average. His affect was mildly restricted. His mood was mildly dysphoric. Thought processes were normal, logical, and goal directed. The Veteran did not report having suicidal or homicidal ideation, or delusions. The Veteran was also noted as having trouble focusing and a forgetful memory. At a May 2016 VA examination, the Veteran reported having a girlfriend for the last 15 years, who was a German citizen. The Veteran also acknowledged having a relationship with his sister who resided in a different state. At the time of the examination, the Veteran’s appearance was within normal limits, with appropriate hygiene. The Veteran was oriented to person, place, time, and situation; and displayed average intelligence, normal attention, concentration, and memory, and fair insight and judgment. Behaviorally, the Veteran was noted as being normal, pleasant, calm, and cooperative. Affect was full range and appropriate, but mood was irritable and dysthymic. The Veteran was noted as having normal psychomotor skills, eye contact, and speech. Thought processes were logical, and goal directed. Thought content was unremarkable, with no evidence of delusions, hallucinations, obsessions, suicidal ideation, or homicidal ideation. Symptomatically, the psychiatric disability was found to be manifested by nightmares, sleep disturbance, difficulty concentrating, irritability, exaggerated startle response, hypervigilance, and slight memory decline. The Veteran denied symptoms associated with anxiety, panic, phobias, obsessions, compulsions, eating disorders, mania, hypomania, or thought disorders. The Veteran was able to manage activities of daily living (ADL) independently. In an April 2017 psychiatry note, the Veteran complained of apathy, anhedonia, anxiety, problems with concentration, hypervigilance, hyper startle, social isolation, avoidance, nightmares, intrusive thoughts, chronic sleep impairment, and helplessness. The Veteran denied suicidal ideation and noted having some interaction with a younger brother about one to two times a month. On mental status examination, the Veteran was described as well-groomed with good hygiene. His psychomotor activity was normal, and his speech was normal and conversational. His affect was constricted. Thought processes were logical and goal directed. The Veteran did not have delusions, hallucinations, obsessions, suicidal ideation, helplessness, hopelessness, or homicidal ideation. The Veteran had some intrusive thoughts and nightmares. The Veteran was oriented times four, with an intact memory, average fund of knowledge, good attention and concentration and fair insight and judgment. During a May 2018 Board hearing, the Veteran asserted a worsening of his psychiatric condition. The Veteran reported experiencing depression, anxiety, outbursts of anger, nightmares, memory issues, sleep disturbances, and an exaggerated startle response. The Veteran also noted having a girlfriend of 15 years and having some relationship with a sister and half-brother. The Veteran stated that he was not suicidal because of religious beliefs. He also acknowledged seeing a psychiatrist for continued psychiatric treatment. During a May 2019 VA examination, the Veteran’s psychiatric disability was found to result in occupational and social impairment with reduced reliability and productivity. At the time of the examination, the Veteran lived alone but had a significant other in another country who visited on occasion. The Veteran also had a friend who he saw two months prior to the examination. Symptomatically, the Veteran’s psychiatric disability was found to be manifested by nightmares, irritable behavior, angry outburst, hypervigilance, exaggerated startle response, problems with concentration, chronic sleep impairment, depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, flattened affect; circumstantial, circumlocutory or stereotyped speed; disturbance of motivation of mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work, or a worklike setting. During the examination, the Veteran was dressed in jeans and long-sleeve shirt, which were clean but sloppy. The Veteran was friendly and appeared candid. His approach to the examination was some agitation, but never was it directed at the examiner. His speech was soft. He showed good expressive language abilities but tended to go off topic and needed to be redirected. He was oriented to person, time, place, and situation. Immediate recall was accurate, but he recalled only one item on delayed recall. Concentration was fair. There was no evidence of hallucinations, delusions, or paranoia. Intellectual ability was below average. His alertness was mildly dull. His abstraction skills were accurate. His mood was depressed, and affect was restricted. The examiner found it easy to establish rapport. The Veteran denied having any suicide or homicide ideations. He showed no impulsivity. His judgment was intact. During a December 2020 VA examination, the Veteran’s psychiatric disability was found to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported having a love interest in Germany who he saw once a year. The Veteran reported that he did not socialize with any friends due to low interest or trust in others. The Veteran spent his spare time staying home and watching television. Symptomatically, the Veteran’s psychiatric disability was found to be manifested by depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impaired judgment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationship; suicidal ideation; and persistent danger of hurting self or others. Behaviorally, the Veteran was alert and oriented times four, with normal attention and appropriate appearance. The Veteran was pleasant and cooperative, with normal speech. His mood was stressed, and his affect was dysphoric. Thought process were coherent, linear, logical, and goal directed. Thought content was normal. Memory was intact, and insight and judgment were fair. The Veteran was noted as having a low acute risk for suicidal ideation. After a thorough review of the claims file, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disability warrants no more than a 30 percent rating prior to May 30, 2019. The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 50 percent rating prior to May 30, 2019. Prior to May 30, 2019, the evidence of record does not show that the Veteran's psychiatric disability more nearly approximated the criteria for a 50 percent rating. For this period, the Board finds that the criteria for the next higher 50 percent rating are not demonstrated by the evidence of record, as the psychiatric disability is not shown to be manifested by 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 long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; or difficulty in establishing and maintaining effective work and social relationships. The Veteran maintained social relationships, and did not exhibit the types or severity of symptoms that would result in reduced reliability and productivity. Therefore, the Board finds that a 50 percent rating is not warranted pursuant to Diagnostic Code 9440 during this period of appeal. The Board acknowledges and has taken into consideration that, for the period prior to May 30, 2019, the Veteran had irritability, and ongoing difficulty with anger management, and some disturbances of motivation and mood. However, while those symptoms may indicate impaired judgment or impaired impulse control, for this period, the evidence of record does not demonstrate the Veteran as ever having a 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); or impaired abstract thinking. The Board finds that, while the symptoms listed in VA's General Rating Formula for Mental Disorders 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, the Veteran's overall disability picture is more nearly approximated by the criteria set forth for a 30 percent rating, pursuant to Diagnostic Code 9411, for the period prior to May 30, 2019. The Board further notes that, prior to May 30, 2019, no examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity during this time period. The Veteran maintained good relationships with his girlfriend and siblings. No record indicates any inability to work due to the psychiatric symptoms during this period. Therefore, the Board finds that impairments with reduced reliability and productivity, or deficiencies in most areas due to psychiatric symptoms have not been shown prior to May 30, 3019. Accordingly, for the period prior to May 30, 2019, the Board finds that a rating in excess of 30 percent for a psychiatric disability is not warranted. The Board finds that the frequency and severity of the anger management issues did not cause impairment sufficient to warrant a higher rating for this period. Effective May 30, 2019, when considering the overall disability picture, the Board finds that the evidence of record shows that the Veteran's psychiatric disability is more nearly approximated by the criteria for a 50 percent rating under the Diagnostic Code 9411. The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 70 percent rating as deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood, as is required for the next higher rating of 70 percent, were not demonstrated. Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F. 3d 112 (Fed. Cir. 2013). The evidence does not indicate that the Veteran had occupational and social impairment, with deficiencies in most areas. There is no lay or medical description of the Veteran manifesting suicidal ideation; obsessional rituals which interfere with routine activities; speech impairment; spatial disorientation; neglect of personal appearance and hygiene; or inability to establish and maintain effective relationships. There is evidence of some impaired impulse control; near-continuous panic or depression affecting the ability to function independently; and difficulty in adapting to stressful circumstances. However, examiners conducting the Veteran's mental status evaluations did not describe the Veteran's psychiatric disability as causing deficiencies in most areas of the Veteran's social and occupational life, and there is strong evidence of the Veteran maintaining relationships with his girlfriend and siblings. The Board finds that, while the symptoms listed in VA's General Rating Formula for Mental Disorders 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, the Veteran's overall disability picture is more nearly approximated by the criteria set forth for a 50 percent rating, pursuant to Diagnostic Code 9411, effective May 30, 2019. Effective December 30, 2020, when considering the overall disability picture, the Board finds that the evidence of record shows that the Veteran's psychiatric disability is more nearly approximated by the criteria for a 70 percent rating under the Diagnostic Code 9411. The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 100 percent as total occupation and social impairment, as is required for the next higher rating of 100 percent, have not been demonstrated. The Board finds that total occupational and social impairment has not been shown during the course of the appeal. There is significant evidence of maintained familial relationships, which precludes a finding of total social impairment. The record indicates that the Veteran has had a girlfriend for over 15 years and has a continued relationship with his siblings. Therefore, as both total occupational impairment and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating was not warranted at any point during the course of this appeal as total social impairment has not been shown. The Board also notes that the Veteran has never displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of closest relatives, own occupation, or own name commensurate with a 100 percent rating. In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that a psychiatric disability was of such severity so as to warrant increased schedular ratings. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, and depressed mood, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the overall disability picture does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for entitlement to a rating in excess of 30 percent prior to May 30, 2019; in excess of 50 percent effective May 30, 2019; and in excess of 70 percent effective December 30, 2020, for posttraumatic stress disorder (PTSD), major depressive disorder, alcohol use disorder, and gambling disorder have not been met. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. The Board is appreciative of the Veteran’s faithful and honorable service. However, as the preponderance of the evidence is against the claim for increased ratings for posttraumatic stress disorder (PTSD), major depressive disorder, alcohol use disorder, and gambling disorder, during the periods on appeal. Therefore, the claim for increased ratings must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.