Citation Nr: 21015564 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-14 358 DATE: March 17, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability prior to July 19, 2018 is denied. Entitlement to a disability rating of 70 percent, but no higher, for an acquired psychiatric disability is granted effective July 19, 2018. FINDINGS OF FACT 1. Prior to July 19, 2018, the Veteran’s acquired psychiatric disability was productive of occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas of functioning was not demonstrated. 2. As of July 19, 2018, the Veteran’s acquired psychiatric disability has been productive of occupational and social impairment with deficiencies in most areas of functioning has been demonstrated; total occupational and social impairment has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disability prior to July 19, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a disability rating of 70 percent, but no higher, for acquired psychiatric disability have been met as of July 19, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from February 1987 to February 1991. This claim was previously before the Board in October 2019, which issued a decision granting entitlement to a 50 percent disability rating, and no higher, for acquired psychiatric disability. (See BVA Decision, 10/18/2019.) The Veteran appealed the denial of a disability rating higher than 50 percent for acquired psychiatric disability to the Court of Appeals for Veterans Claims (Court or CAVC). In July 2020, the Court issued a Joint Motion for Partial Remand (JMR) which found that the Board’s analysis of the Veteran’s entitlement to a rating higher than 50 percent was inadequate and that consideration should be given to specific evidence in re-evaluating the decision. (See CAVC Decision, 08/05/2020.) The matter was remanded to the Board for further action in accordance with the findings of the JMR. In addition, the Veteran submitted a Disability Benefits Questionnaire (DBQ) with respect to the severity of his acquired psychiatric disability in July 2020. (See Statement in Support, 08/15/2020.) After considering that evidence and lay statements submitted by the Veteran, the Agency of Original Jurisdiction (AOJ) in September 2020 awarded a higher disability rating of 70 percent for acquired psychiatric disability, effective December 29, 2019. The questions before the Board, then, involve entitlement to increased disability ratings for acquired psychiatric disabilities for two separate periods: prior to December 29, 2019 and as of December 29, 2019. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, is assigned a 50 percent rating. 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, is assigned a 70 percent rating. 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, is assigned a 100 percent rating. 38 C.F.R. § 4.130 The Veteran’s acquired psychiatric disability was rated as 30 percent disabling effective September 2012. He filed a new claim which is the equivalent of an increased rating claim on July 9, 2015. Under the provisions of 38 C.F.R. § 3.400, consideration for entitlement to a higher disability rating would encompass the period from July 9, 2014 forward. In August 2014, the Veteran’s VA treating mental health provider wrote a note supporting his receiving accommodations in his academic course work. (See Medical Treatment Record, 08/25/2014.) The provider noted that the Veteran’s mental health disability required adjustments to his academic schedule such that he would be taking a part-time course load but be considered a full-time student. The provider noted that the Veteran had difficulty multitasking at work and had problems retaining information from classes without repeated readings or hearing of lectures. A July 2015 VA treatment note indicated that the Veteran was reporting feeling overwhelmed in his new job and struggling with multitasking and absorbing new information. (See CAPRI, 07/18/2015.) At the October 2015 VA examination, the Veteran was noted to have symptoms of depressed mood, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, such as in the workplace. (See C&P Exam, 10/11/2015.) The examiner described the Veteran’s overall disability picture as one of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but generally functioning in a satisfactory manner with normal routines, self-care, and conversations. At a hearing held at the Regional Office in January 2016, the Veteran testified that he was having difficulty with maintaining either a full-time work schedule or a full-time school schedule. (See Hearing Testimony, 01/08/2016.) He reported that he found it excruciatingly difficult to work full-time because of his adjustment disorder and had received special accommodations in his schooling as a result of his anxiety. VA treatment notes from January and March 2016 include the Veteran’s concerns about difficulty concentrating, difficulty making decisions, anxiety, and his tendency to stutter. (See CAPRI, 03/29/2016.) He reported passive suicidal ideation, generally just wanting to end it all, but denied having any specific intent or plan to do so. In the past he had accommodations in his academic program but had not needed to utilize them for the past 2 semesters. After failing one of his four classes in the previous semester, his anxiety and depressive symptoms were returning, and he felt like he needed the accommodations again. He was resistant to seeking psychotherapy, stating he was not interested in making any changes in his life, he just wanted someone to listen to him. A note from his academic tutor in April 2016 reported that the Veteran was expressing a lot of anxiety about his classes. (See VR&E, 04/13/2016.) He had at times become so stressed that he walked out of class. He found the fast pace of the classes quite challenging. At the June 2017 VA examination, the Veteran identified his worst mental health symptoms as anxiety, frequent worry, overreaction to stress, and a tendency to become overwhelmed. (See C&P Exam, 06/19/2017.) He was also experiencing drooling, sweating, and agitation when he felt backed into a corner, as well as frequent frustration and irritability, social withdrawal and isolation, and intermittent suicidal ideation. These periods tended to last from one to three days and to resolve spontaneously. It was the examiner’s opinion that the prevalence of anxiety symptoms warranted a change in the Veteran’s diagnosis of Adjustment Disorder to Unspecified Anxiety Disorder. The examiner felt that the Veteran’s overall disability picture remained one of chronic mild to moderate symptoms. He was able to function well as a full-time college student with a part-time job, regardless of his occasional worsening mental health symptoms. During a mental health visit in August 2017, the Veteran reported that he had passed his classes in the summer, although he found it stressful. (See CAPRI, 08/16/2017.) He had been granted a decreased workload for his schooling but had not needed to use it for the previous two semesters. He was concerned about upcoming class work and financial issues. The provider noted that his mental health issues did not warrant hospitalization and that seeking hospitalization would be the Veteran’s way of delaying his responsibilities, which would result in increased mental health issues. Treatment records from September, October, and November 2017 indicated that the Veteran was experiencing fluctuations in mood with occasional thoughts of self-harm or suicidality, although he felt safe at home and did not intend to act on his thoughts. (See CAPRI, 11/16/2017.) In July 2018 the Veteran reported to his VA mental health provider that he had experienced passive suicidal ideation while on top of the building he worked in. (See CAPRI, 03/21/2019.) This had been prompted in part by clashes he was having with his supervisor, which made him want to quit his job. He stated that he felt that his anxiety was taking over and he was not actually suicidal. In October 2018 the Veteran was seen at VA for management of his mental health medication. (See CAPRI, 03/21/2019.) He felt that the medication he was prescribed worked on normal days but did not help days of more severe anxiety and/or depression. He felt like he was exhibiting two different personalities at work, felt that his supervisor was abusive to him, and he did not want to talk with her; he had given notice at his job due to stress and anxiety. He reported having passive suicidal thoughts without any intent or plan to act on them and stated that he did not want to act on them, that the thoughts “just come.” At the April 2019 Board hearing, the Veteran testified that he had been receiving therapy and taking mental health medications for his depression and anxiety with panic attacks for some time. (See Hearing Transcript, 04/23/2019.) He had also used the Veteran’s crisis hotline and had been considered for hospitalization as he felt he was having a nervous breakdown. He reported experiencing persistent suicidal ideation, including feeling the urge to jump when he visited a physician on the 30th floor of a building. He was able to get through these urges because of the support of his life partner and his mental health care team. He was having difficulty keeping a job because of difficulty in adapting to new and stressful environments and a tendency to make inappropriate remarks that got him fired. He testified that under stress he became a different person, was more irritable, and tended to stammer a lot when he spoke. He felt that the most recent mental health evaluation had been inadequate because it listed only depression and anxiety and had not addressed his panic attacks, suicidal ideation, irritability, anger, difficulty maintaining a job, and his persistent danger of hurting himself. Some of his employers had made some accommodations for his mental health issues, but those were not always successful. In October 2019, the Veteran was seen and treated for mental health issues and self-harm at a private hospital emergency room. (See Medical Treatment Record, 11/14/2019.) He received both brief in-patient treatment and outpatient treatment for approximately 10 days. (See Statement in Support, 11/20/2019.) In December 2019, the Veteran admitted himself to the hospital after a traumatic emotional breakdown at his job. (See Statement in Support, 12/08/2019.) The breakdown was the result of financial stress, including a bankruptcy, and a recent car accident. Records from his treatment during that time period show that he had begun experiencing heightened symptoms of anxiety and depression when he was involved in car accident and subsequently treated at the emergency room for mental health symptoms. He was having difficulty sleeping, nightmares, concerns about being fired from his job, irritability, and agitation. He was informed in December 2019 that he had been laid off from his job. After reviewing all information of record, with specific attention to the documents discussed above, the Board finds that entitlement to a 70 percent disability rating for acquired psychiatric disability was warranted as of July 19, 2018, the date of treatment revealing his stress over problems with his supervisor and his resultant suicidal ideation, taking him to the roof of the building. From this point onward the record consistently indicates deficiencies in most areas. Indeed, on October 28, 2019 he presented himself to the emergency room for acute mental health distress and was treated thereafter in inpatient and outpatient procedures for about 10 days. After that, he was again treated at a hospital in early December 2019. The need for acute hospitalizations during that time period is a clear indication that the Veteran’s disability picture was one of impairment in functioning with respect to his judgment, thinking, and mood, which warranted a much closer level of scrutiny by mental health professionals. In addition, he indicated that he was facing possible termination from his job, evidence of impairment in his occupational functioning. Therefore, entitlement to a 70 percent disability rating is shown as of July 19, 2018. Entitlement to a 70 percent disability rating for acquired psychiatric disability was not shown prior to July 19, 2018. Specifically, the record reflects impairment productive of reduced reliability and productivity, as shown by the fact that his difficulties at one job did not prevent him from obtaining another. In addition, the Veteran was able to attend his classes and do well, albeit with the accommodations afforded him of a reduced class load. The need for accommodations coupled with ability to do well in school is more indicative of reduced productivity than of impairment in most areas of functioning, such as would warrant a higher disability rating. Moreover, the record indicates that in 2017 he did not need to use his accommodations. Additionally, he is not shown to have had most of the listed symptoms associated with the higher disability rating, such as obsessional rituals, illogical or irrelevant speech, an inability function independently and appropriately as a result of his anxiety and depression, neglect of personal hygiene, impaired impulse control, or an inability to establish work and social relationships. While he did display some difficulty in adapting to stressful circumstances and experienced some suicidal ideation (which will be addressed below), these did not produce an overall disability picture of impairment of functioning in most areas of life during the period in question. With respect to social functioning, the Board notes that the Veteran has been able to maintain a committed relationship throughout the appeals period and has been considered to show a moderate level of disability by his treating mental health providers. Both are more consistent with a 50 percent disability rating than a 70 percent rating. The Board has considered the holistic picture with respect to the Veteran’s social functioning, including his irritability and difficulty getting along with coworkers, the tension in his relationship with his partner, and his difficulties in speaking when under stress. However, prior to July 19, 2018, the Board finds these symptoms to be more closely aligned with the disability picture of circumstantial speech, impaired memory, impaired abstract thinking, and difficulty establishing and maintaining work and social relationships. As such, they are more consistent with the overall disability picture associated with a 50 percent disability rating than with a higher rating. The Board has considered the Veteran’s reported passive suicidal ideation in accordance with the holding of Bankhead v. Shulkin, 29 Vet. App. 10 (2017) and acknowledges that the 70 percent criteria with respect to suicidal ideation does not require active instead of passive ideation. As noted in Bankhead, it is not the presence of any one symptom or even all listed symptoms, but the level of occupational and social impairment which is the basis for the ultimate conclusion as to the level of disability warranted. 29 Vet. App. 10, citing Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board acknowledges that the Veteran’s treatment records show that he has experienced suicidal ideation which he has characterized as involuntary (“just comes”) and which his treating providers have characterized as passive. In addition, prior to his hospitalization in October 28, 2019, the Veteran was not considered by competent mental health providers to pose a risk of self-harm or a danger to himself or others. While the risk of self-harm is not part of the criteria for a 70 percent rating, such risk would be considered an indicator of deficiencies in judgment, thinking, or mood as required by the criteria. The Board concedes, as the Court noted in Bankhead, that the presence of suicidal ideation alone may be enough to indicate a level of impairment in occupational and social functioning warranting assignment of a 70 percent disability rating. However, the Board finds that is not the case here. Rather, throughout the period in question, prior to the increase awarded herein, the Veteran was able to continue working, attend and pass his classes, maintain a relationship with his partner, and exercise appropriate judgment to maintain basic life functions, as evidenced by his ability to seek bankruptcy protection for his financial issues, and thus was not shown to have been impaired in most areas of functioning. As such, the Board finds that entitlement to rating in excess of 50 percent prior to July 19, 2018, was not shown. 38 C.F.R. § 4.130. As of that date, however, the suicidal ideation occurred in the workplace and, based on this and the other considerations discussed above, is found to be more representative of deficiencies in most areas from this point forward. While the instant decision finds that a 70 percent disability rating is warranted as of July 19, 2018, the weight of the evidence is against assignment of a 100 percent rating for any portion of the rating period on appeal, as discussed below. In May 2020 the Veteran informed his VA mental health provider that he had obtained a new job in his field and would be making more money than expected. (See CAPRI, 07/14/2020.) This was a great relief to him as his field of hospitality was hard-hit by the pandemic and he was concerned about financial stress. In June 2020, the Veteran reported feeling increased anxiety with respect to the pandemic and the various protests and political events in the country. (See CAPRI, 07/14/2020.) He reported concern over a possible exposure to COVID-19 at work and concerns about bringing the infection home to his immune-compromised partner. He was experiencing intrusive thoughts about the infection although he had tested negative and was careful to maintain precautions including wearing masks and gloves. In July 2020, the Veteran was treated for his anxiety and depression symptoms at VA, noting that he felt his suggestions in the workplace were being ignored. (See CAPRI, 07/14/2020.) However, he was committed to maintaining his job in order to avoid having too many gaps in employment reflected in his resume. He was demonstrating improved judgment and insight and denied having any suicidal ideation or inclination towards suicide.   Based on the evidence of record, with particular attention to the documents discussed above, the Board finds that entitlement to a 100 percent disability rating for acquired psychiatric disability is not warranted. Specifically, a 100 percent disability rating is assigned when there is evidence of total occupational and social impairment, which the record does not reflect. The Veteran’s VA treatment records show that he has been able to obtain a job in the hospitality field even during the pandemic, that he is able to commute to his job by public transportation, and that he continues to be in a stable relationship with his partner. While the record does show high levels of anxiety, fluctuating mood, and perseveration regarding stressors, all of which have worsened with the global pandemic, there is no evidence that the Veteran is totally impaired with respect to occupational and/or social functioning. Therefore, entitlement to a rating in excess of 70 percent for acquired psychiatric disability is not warranted. 38 C.F.R. § 4.130. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.