Citation Nr: 21015970 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-37 351 DATE: March 18, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for the service-connected unspecified anxiety disorder, panic disorder, an unspecified depressive disorder, and alcohol use disorder (hereinafter, “psychiatric disorder”) is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s service-connected psychiatric disorder has not caused total social and occupational impairment. CONCLUSION OF LAW For the entirety of the appeal period, the criteria for an initial rating in excess of 70 percent for the service-connected psychiatric disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, DC 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1994 to October 1996, from September 2004 to October 2005, and from July 2009 to September 2010. In July 2020, Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been incorporated into the record. In October 2020, the Board remanded this issue for further development, directing that an additional examination be offered to the Veteran to determine a current assessment of her service-connected psychiatric symptoms. That development has been completed, and the case now returns to the Board for adjudication. The October 2020 remand is incorporated herein by reference. Entitlement to an initial disability rating in excess of 70 percent for service-connected psychiatric disorder The Veteran contends that her service-connected unspecified anxiety disorder with panic disorder, unspecified depressive disorder, and alcohol use disorder warrants a rating in excess of 70 percent. Throughout the appeal period, the Board finds that the Veteran’s symptoms did not warrant a complete rating. Initially, and in this regrad, the Board notes that, for the entire appeal period (with the exception of a period of convalescence from September 4, 2018 to March 31, 2019, the Veteran’s service-connected psychiatric disorder was rated at 70 percent. Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s service-connected unspecified anxiety is rated under DC 9434. Under this diagnostic code, a 70 percent rating is assigned with an 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); and inability to establish and maintain effective relationships. A 100 percent 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; 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. 38 C.F.R. § 4.130 DC 9434. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. “[A] veteran may only qualify for a given disability rating under [38 C.F.R. § 4.130] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). On VA examination in November 2015, the Veteran’s symptoms were listed as depressed mood, anxiety, panic attacks that occur weekly or less often, disturbances 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. The examiner found that the Veteran’s symptoms caused 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. On VA examination in September 2017, the examiner found that the Veteran did not meet all the criteria necessary for a diagnosis of posttraumatic stress disorder (PTSD). The Veteran’s symptoms were listed as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted occupational and social impairment with reduced reliability and productivity. Private medical records available indicate that the Veteran was hospitalized due to her anxiety symptoms and alcohol use disorder, as discussed above, and she admitted to past suicidal ideations, without planning, or homicidal ideations. On VA examination in November 2018, the examiner remarked that the Veteran’s diagnosis was unspecified anxiety with depression, but noted that a reevaluation for PTSD was indicated. The Veteran’s symptoms were depressed mood; anxiety, suspiciousness; panic attacks that occur more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; flattened affect; difficulty in understanding complex commands; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was homeless and is fearful to leave her current living facility due to anxiety and triggering her alcohol abuse. The examiner found the Veteran to be polite, respectful, and courteous. The Veteran was appropriately dressed for the appointment and was willing to answer all the questions. Although she has attempted suicide on multiple occasions, the Veteran stated she had no intent, plans, or desires to harm herself and was heavily future oriented to spending the Thanksgiving holiday with her daughter. The examiner remarked that the Veteran’s service-connected psychiatric disorders resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On VA examination in March 2019, the Veteran reported close relationships with her siblings, though her brothers triggered her anxiety. She stated she spoke with her adult daughter every evening and described their relationship as close. She stayed with one of her brothers during a period of homelessness. She denied suicidal or homicidal ideations. Her reported symptoms were depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; persistent danger of hurting self or others. At the July 2020 hearing, the Veteran testified that she experienced a hallucination including a shadow figure, along with multiple panic attacks weekly, nightmares causing insomnia and sleep disturbance, and problems with concentration, among her previously discussed symptoms. On VA examination in October 2020, the Veteran denied current homicidal or suicidal ideation. Her current symptoms were depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less; chronic sleep impairment; mild memory loss; flattened affect; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and inability to establish and maintain effective relationships. The examiner noted occupational and social impairment with reduced reliability and productivity. Pursuant to the October 2020 Board remand, the Veteran was accorded an examination in November 2020. The Veteran reported that she has difficulty interacting in large groups of people, forgetfulness for chores and activities, and that she neglects to shower for several days. She had 3 psychiatric hospitalizations in 2018 and 2019, but denied current suicidal attempts or ideations. She also reported seeing shadow figures out of the corner of her eye when experiencing flashbacks of trauma. The examiner explained that these are not visual hallucinations per se, but rather re-experiencing of trauma when faced with PTSD triggers. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Falls short of total occupation and social impairment. Her current symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss such as forgetting names, directions, or recent events, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work-like setting, neglect of personal appearance and hygiene. The Board finds that, although the Veteran’s psychiatric symptoms clearly inhibit her ability to obtain and maintain gainful employment, her symptoms do not result in total social impairment, as is required for a rating higher than 70 percent. Throughout the appeal period, the Veteran has reported maintaining a healthy and supportive relationship with her daughter. She states that she is on good terms with her three brothers—and, indeed, enough so that she was able to live with one of her brothers during a period of homelessness. A higher rating of 100 percent requires total occupational and social impairment, with symptoms such as persistent hallucinations, grossly inappropriate behavior, disorientation to time and place, memory loss of close relatives or own name. Here, the Veteran has had what she called hallucinations. The November 2020 examiner explained that these shadows were a re-experiencing of trauma and were not indicated to be persistent. Further, the Veteran’s behavior during examinations has been appropriate, and she has not experienced memory loss of close relatives or herself. Because her symptoms do not rise to the level required for a higher rating, and because her symptoms do not result in total social impairment, a rating in excess of 70 percent is not warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.E. Lee 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.