Citation Nr: 21024452 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-19 973 DATE: April 22, 2021 ORDER Entitlement to a schedular rating in excess of 70 percent for a psychiatric disability is denied. FINDING OF FACT 1. It is not factually ascertainable from the record that an increase in severity of the Veteran’s disability had occurred within the year prior to VA’s receipt of his claim seeking an increased rating for his psychiatric disability. 2. At no time is the Veteran’s unspecified trauma and stressor-related disorder with a history of PTSD disability shown to have been productive of total occupational and social impairment. CONCLUSION OF LAW A schedular rating in excess of 70 percent is not warranted for the Veteran’s psychiatric disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.3, 4.7, 4.130, Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from September 1965 to June 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2015 Department of Veterans Affairs (VA) rating decision (that continued a 50 percent rating for the Veteran’s service-connected psychiatric disability). In June 2019 and July 2020, this matter and the matter of entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) were remanded for further development. An October 2020 rating decision granted a 70 percent rating for the psychiatric disability, effective May 19, 2015 (the date the claim for increase was received), and also granted a TDIU rating, effective May 19, 2015, fully resolving that issue. In November 2020, the Veteran’s representative withdrew from representation of the Veteran. He was so advised, and also afforded opportunity to appoint another representative. He has not done so and is considered to be pursuing the appeal in this matter pro se. The 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). Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400 (o)(2). The Veteran’s unspecified trauma and stressor-related disorder with a history of PTSD psychiatric disability is rated under criteria in Code 9411 (and the general rating criteria for mental disorders). A 70 percent rating 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent (maximum schedular) rating is warranted for PTSD 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather 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). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for the assigned of an increased rating in any particular period. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment, but shall not assign an evaluation based solely on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran’s claim for an increased rated was received May 19, 2015. The relevant period for consideration therefore begins one year prior, in May 2014. The Veteran’s psychiatric disability is now rated 70 percent throughout from May 19, 2015 (pursuant to an October 2020 rating decision grant of such rating) . In a statement received August 25, 2014, the Veteran’s brother (P.G.) reported the Veteran has panic attacks 2 to 4 times per day and he must call him to calm down. On May 19, 2015, VA received a formal claim, in part, for an increased rating for his psychiatric disability. On May 24, 2015 VA examination, PTSD was diagnosed. Symptoms noted included: anxiety; suspiciousness; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; increasing irritability; increasing social isolation; and, quickness to become angry. The Veteran was found to be capable of managing his finances. He reported he spent his time attending flea markets and walking. The examiner opined the psychiatric disability manifests in 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 July 2015 VA examination, unspecified trauma and stressor-related disorder and antisocial personality disorder were diagnosed. The Veteran reported he continued to be close to his siblings. Symptoms noted included: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; re-experiencing, avoidance, and hyper-arousal symptoms; and, feeling depressed on a daily basis for the past 2 weeks. The Veteran denied significant depressed mood, suicidal or homicidal ideation, or psychotic symptoms. The examiner opined he was able to differentiate the symptoms attributable to each diagnosis and opined that the symptoms of unspecified trauma and stressor-related disorder included reexperiencing, avoidance, feelings of detachment from others, and symptoms of increased arousal. The examiner opined the psychiatric condition manifests in occupational and social impairment with reduced reliability, and attributed the majority of the occupational and social impairment to a personality disorder, and opined the Veteran was capable of managing his financial affairs. In an August 2017 statement, P.G. reported the Veteran’s psychiatric condition had worsened in the past few years. He reported the Veteran has memory issues where he has to call him to remind him to take his medication or when he has doctors’ appointments, and has even begun to forget his children’s names. He reported communication difficulties, where the Veteran mumbles and slurs his words, and becomes frustrated and confused trying to explain things. He reported that the Veteran only interacts with his roommate and will struggle to stay focused, noting he will start one chore such as dishes and get side tacked and start doing another chore. He reported the Veteran struggles to keep a job as he cannot focus on the job duties to perform at a satisfactory level and has anger issues over minor issues. In an August 2017 statement, the Veteran’s roommate noted they have been roommate since 2015. He reported the Veteran is very forgetful, forgets to take his medication and forgets when he has appointments. He reported if something does not go according to plan, the Veteran will become stressed out and frustrated, and that the Veteran is very isolated and only leaves the house to go to appointments. When they do talk, it is about bills or the weather, as the Veteran does not talk about his feelings or what he is thinking. In an October 2018 private disability benefits questionnaire (DBQ), unspecified trauma and stressor-related disorder with a history of PTSD was diagnosed. Symptoms noted included: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss such as forgetting names, directions, or recent events; speech intermittently illogical, obscure, or irreverent; difficulty understanding complex commands; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations (about being stalked by people or feeling that people are working against him, and that he hears noises and voices that are not there); neglect of personal appearance and hygiene (he only showers, grooms, and changes his clothes twice a week); intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene (he reported he tries to keep up with household chores, grocery shopping, and yard work and his roommate helps with the chores). The examiner opined the Veteran was capable of managing his financial affairs however he was in financial distress and on the verge of filing for bankruptcy. The provider noted the Veteran has unprovoked irritability with periods of violence, passive suicidal ideation, and admits to homicidal ideations when he goes to pay his bills (about twice a month). He noted the Veteran does not leave the house except for doctor’s appointments, absolute necessities, and getting groceries. The private provider opined the psychiatric disability manifests in occupational and social impairment with deficiencies in most areas. On November 2019 VA PTSD examination, (the service-connected) unspecified trauma and stressor and (nonservice-connected) antisocial personality disorder were diagnosed. The examiner opined he was able to differentiate what symptoms are attributable to each diagnosis. She noted that symptoms of intermittent irritability, sleep disturbances, and intermittent are related to his service-connected psychiatric disorder while symptoms of failure to conform to social norms with respect to lawful behaviors, irritability and aggressiveness, reckless disregard for the safety of others, and consistent irresponsibility are due to the nonservice-connected antisocial personality disorder. She opined that a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. VA mental health treatment records throughout regularly note that the Veteran was casually dressed and gave good eye contact, had normal speech rhythm and flow, with fair judgment and insight; he denied suicidal or homicidal ideations, and reported no psychotic symptoms. He reported intrusive thoughts, nightmares, forgetfulness, irritability, and that he takes his prescribed medications. See July 2015, April 2016, August 2016, February 2017, July 2017, December 2017, May 2018, September 2018, and January 2019 VA treatment records. A May 2019 VA treatment record notes the Veteran stays busy with household chores and is forgetful at times. A February 2020 VA treatment record notes he had trouble finding a parking spot on the campus and was quite upset with it. He reported he gets anxious and has a low frustration tolerance. The July 2020 Board remand ordered development for a VA addendum opinion regarding the current severity of his service-connected psychotic disability, specifically identifying when an increased level of impairment began if one were found. In an October 2020 VA addendum opinion, the consulting provider opined it is at least as likely as not that the Veteran’s functioning manifests as occupational and social impairment with deficiencies in most areas. The examiner noted she was not able to delineate the extent to which his impairments are attributable to his service-connected unspecified trauma and stressor related disorder as opposed to the nonservice-connected antisocial personality disorder without resort to speculation. The provider opined the Veteran consistently had difficulty or inability to maintain effective relationships, intrusion symptoms, irritable and/or aggressive behavior, poor judgment and impulse control (based on a history of incarcerations and irritable behavior), difficulty with sleep which is somewhat managed by prescribed Trazodone, difficulty maintaining employment, low motivation, and depressive symptoms such as low self-esteem throughout his mental disorder DBQs from 2014 through 2019. She noted the 2018 DBQ notes much more severe symptoms than the 2019 VA examination, due to either over-exaggerating symptoms in 2018 or downplaying symptoms in 2019. The provider notes that it is not possible to determine which of those is correct with resort to speculation. She opines that is possible to say that he does have significant symptoms that interfere with maintaining employment, based on his employment and behavioral history, and that he does require continuous medication, as he has been prescribed Trazodone, according to the records, since 2013 in order to sleep. At the outset, the Board finds there has been substantial compliance with its June 2019 and July 2020 remand directives pertaining to the matters on appeal (which is addressed on the merits). See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The critical question remaining before the Board in this matter are (1) is it factually ascertainable that an increase (to 70 percent) occurred during May 19, 2014 to May 19, 2015, and (2) whether, at any time since May 19, 2015, the psychiatric symptoms and their impact on occupational and social functioning approximated total occupational and social impairment, warranting a 100 percent schedular rating. Considering the May 2014 VA examination and P.G.’s statement regarding panic attacks, the Board finds the preponderance of the evidence is against a finding it was factually ascertainable that the Veteran’s occupational and social impairment approached the level contemplated by a 70 percent rating during the year prior to May 19, 2015. His psychiatric symptoms from May 2015 to May 2015 do not include obsessional rituals; irregular speech; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; an inability to establish and maintain effective relationships; or any other symptoms of similar nature and severity. While his brother reported daily panic attacks, he noted he calms down following a phone call and the record does not show that they resulted in the level of functional impairment associated with a 70 percent rating. In other words, while some of the Veteran’s symptoms in the year prior to May 19, 2015 may have been the type found in the criteria for a 70 percent rating, worsening to a level of occupational and social impairment with deficiencies in most areas was not shown. Accordingly, the Board finds that the preponderance of the evidence is against a finding that it was factually ascertainable from the record that an increase in severity of the disability had occurred during the year preceding the date of claim. 38 C.F.R. § 3.400 (o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997). Considering the symptoms and impairment manifested from May 19, 2015, the Board finds that the Veteran’s unspecified trauma and stressor related disorder has throughout presented a disability picture consistent with occupational and social impairment with deficiencies in most areas, and that total occupational and social impairment has not been shown at any time. The July 2015 VA examiner, October 2018 private examiner, and October 2020 VA examiner each opined that the unspecified trauma and stressor related disorder presented a disability picture most consistent with either occupational and social impairment with reduced reliability or occupational and social impairment with deficiencies in most areas; none found total social and occupational impairment. Notably, the October 2020 examiner reviewed the entire record, including the prior (November 2019) VA examination and October 2018 private medical reports, and found that the level of impairment has remained the same throughout and was most consistent with occupational and social impairment with deficiencies in most areas, supporting that his level of impairment has remained consistent throughout. While the October 2020 VA examiner discussed a nonservice-connected personality disorder and opined that she was unable to delineate which symptoms are attributable to each diagnosis, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board does so in this decision. There is no objective evidence of gross impairment in thought processes or communication, persistent danger of hurting self or others, grossly inappropriate behavior, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Although the October 2018 examination (by a private psychiatrist) noted the Veteran has (apparently based on his self-reports, as treatment records do not show) persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, and panic attacks that affect the ability to function independently, the frequency, duration, and severity of these symptoms were not such as to produce total occupational and social impairment. The Veteran lives with a roommate, maintains relationships with his siblings, keeps up with chores (albeit with distractions that impede completion), and attends his VA appointments, all reflecting less than total social functioning impairment. VA examinations and treatment records consistently show, and the Veteran acknowledges, that he is able to (and does) manage his own finances. Such functioning is also inconsistent with a finding of total occupational and social impairment. While he reports homicidal ideation while paying his bills, there are no reports of violent or criminal acts or intent during the period on appeal. Moreover, while he reported some suicidal ideation to the October 2018 provider, he never exhibited, and was not shown to be, a persistent danger to himself or others. That the Veteran is unemployable due to his psychiatric disability has been acknowledged by his award of a TDIU rating, throughout. The Board further finds that VA treatment records reflect otherwise that the symptoms of the Veteran’s unspecified trauma and stressor related disorder and his level of functional impairment while significant, are not so severe as to result in the total occupational and social impairment required for a 100 percent scheduler rating. During the period, he has participated in therapy, has not been in danger of hurting himself or others, and has tended activities of daily living on his own, all factors weighing against a finding that his psychiatric disorder has resulted in total occupational and total social [emphasis added] impairment. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. ; GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.