Citation Nr: 21024510 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-39 553 DATE: April 23, 2021 ORDER Prior to May 14, 2015, entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD); major depressive disorder; generalized anxiety disorder; psychophysiological insomnia (psychiatric condition) is denied. From May 14, 2015 to June 17, 2018, entitlement to a 30 percent disability rating, but no higher, for a psychiatric condition is granted. From June 18, 2018 to December 19, 2019, entitlement to a 50 percent disability rating, but no higher, for a psychiatric condition is granted. From December 20, 2019, entitlement to a disability rating in excess of 50 percent for a psychiatric condition is denied. FINDINGS OF FACT 1. Prior to May 14, 2015, the Veteran’s psychiatric condition resulted 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. 2. From May 14, 2015 to June 17, 2018, the Veteran’s psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From June 18, 2018, the Veteran’s psychiatric condition resulted in occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to May 14, 2015, the criteria for a disability rating in excess of 10 percent for a psychiatric condition have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400-9411. 2. From May 14, 2015 to June 17, 2018, the criteria for a 30 percent disability rating, but no higher, for a psychiatric condition have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400-9411. 3. From June 18, 2018 to December 19, 2019, the criteria for a 50 percent disability rating, but no higher, for a psychiatric condition have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400-9411. 4. From December 20, 2019, the criteria for a disability rating in excess of 50 percent for a psychiatric condition have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from June 15, 1993 to July 6, 1993, from November 1999 to October 2002, and from May 2008 to December 2013, with deployment in Afghanistan from May 2009 to June 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing is on record. In November 2019, the Board remanded the matter for further development and the case has been returned to the Board for appellate consideration. 1. Prior to May 14, 2015, entitlement to a disability rating in excess of 10 percent for posttraumatic stress disorder; major depressive disorder; generalized anxiety disorder; psychophysiological insomnia (psychiatric condition) is denied. The Veteran seeks an increased disability rating for his psychiatric conditions, herein referred to as a collective “psychiatric condition.” The Veteran’s condition is currently rated is 10 percent disabling prior to August 22, 2018, 30 percent disabling from then until December 20, 2019, and 50 percent disabling thereafter. The Board finds that the Veteran’s psychiatric condition is appropriately rated as 10 percent disabling until May 14, 2015, warrants a 30 percent disability rating, but no higher, from May 14, 2015 to June 17, 2018, and warrants a 50 percent disability rating, but no higher, from June 18, 2018. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings should 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. The Veteran’s psychiatric condition is evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R § 4.130, Diagnostic Codes 9400-9411.  Under Diagnostic Codes 9400-9411, ratings are assigned according to the degree of occupational and social impairment resulting from manifestations of the disability at issue.  However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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).  Under the provisions for rating psychiatric disorders, a 30 percent disability rating is assigned when there is evidence 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), 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).  38 C.F.R. § 4.130, Diagnostic Code 9411.  A 50 percent rating requires evidence of 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.  Id.   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 work like setting; inability to establish and maintain effective relationships.).  Id.   A 100 percent rating 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; memory loss for names of close relatives, own occupation, or own name.  Id.   When evaluating a mental disorder, the rating agency shall consider 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 agency shall assign a rating based on all the 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. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126.  Moreover, it is not sufficient to simply match the symptoms listed in the rating criteria against those exhibited by the Veteran.  Rather, “VA must engage in a holistic analysis” of the frequency, severity, and duration of the signs and symptoms of the Veteran’s mental health condition, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment.  Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Turning now to the evidence, the Board first notes that the Veteran was diagnosed with adjustment disorder and a depressed mood towards the end of his service, in July 2013. Months later, in March 2014, the Veteran underwent a VA examination on his mental health. Based on his symptomatology at the time, the examiner was unable to diagnose a mental health condition. The examiner explained that the Veteran presented “no indications of gross psychopathology” and an “essentially normal limits profile.” The Veteran noted some irritability. The examiner observed him to be a “pleasant, direct male with no noticeable behavioral oddities.” Records note that following separation from service, the Veteran worked in a Department of Health and Human Services office for approximately six months before he was let go at the end of June 2014 for becoming “defiant with administration.” Mental health progress notes from July 2014 note that the Veteran was calm, cooperative, and fully oriented at an appointment. He did not display any difficulties in thought or speech. However, the Veteran described himself as irritated and described getting angry at interactions with other people, which he noted he was noticing more. He described himself as very organized and intolerant of those who are not. He reported not being able to share feelings with his wife and finding this very difficult. He did not describe any suicidal or homicidal ideation, intent, or plans, and the examiner diagnosed him with depression and adjustment disorder. The Veteran also submitted a November 2014 privately conducted initial assessment of his mental health. At the assessment, the Veteran endorsed feeling out of control, increased anger, anxiety and panic attacks, and difficulty regulating and controlling his emotions. He relayed experiencing increased difficulty with his superiors at work, who he felt were not helpful when he needed assistance. The clinician assessed the Veteran’s limitations as increased anxiety and anger that is now beginning to affect work performance. The Veteran was provided a second VA examination on his mental health in January 2015. At the examination, the Veteran noted marital problems that stemmed from deployment had resolved and that his marriage was going well. He noted some irritability which he related to reduced stress tolerance. The Veteran reported he and his wife spent time with several couples on a regular basis and he got along satisfactorily with others in a job setting. Beyond his occupation, the Veteran also reported working towards a master’s degree in business administration. The examiner observed the Veteran to make good eye contact and use normal speech. The Veteran was noted to be alert, oriented, and satisfactorily groomed. He expressed himself well during the examination and was observed to be articulate and of above average intelligence. His affect was full ranging and appropriate. His underlying mood was recorded as occasionally anxious and irritable. He did not appear to be experiencing significant psychological distress in the form of depression. He tracked the conversation well and concentration was noted to be intact, as well as his memory. His thinking was logical and goal directed, with no indication of a thought disorder. The Veteran denied any significant emotional problems beyond irritability under stress. In this vein, the examiner noted that the Veteran experienced anxiety and qualified the Veteran’s symptomatology as resulting 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. Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his psychiatric condition prior to May 14, 2015. To this end, prior to that date, the record does not show that the Veteran’s psychiatric condition manifested worse than 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. The Board acknowledges that the Veteran was let go from his first job out of service in June 2014, which indicates some occupational impairment, and that some symptoms on the record during this period are contemplated by the 30 percent disability rating criteria. However, his June 2014 termination is the only incident during this period that could be construed as evidence of an inability to perform occupational tasks. Otherwise, in March 2014, the Veteran was assessed as having an “essentially normal limits profile.” In November 2014, a private assessment noted that the Veteran’s anxiety, anger, and irritability symptoms were now just beginning to affect his work performance. It was not suggested that his irritability affects his work performance more than mildly. Thus, the Board finds the Veteran’s psychiatric condition overall did not amount to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks because the record does not show the existence of intermittent periods of inability to perform, but one period where it could be construed as such. Notably, the Veteran denied any significant emotional problems beyond irritability under stress at his January 2015 VA examination. Thus, the Board’s finding for this period is consistent with what the Veteran reported at his January 2015 examination—difficulty during periods of significant stress. 2. From May 14, 2015 to June 17, 2018, entitlement to a 30 percent disability rating, but no higher, for a psychiatric condition is granted. The Veteran’s psychiatric symptoms were noted to be worse beginning May 14, 2015. In his May 14, 2015 Notice of Disagreement, the Veteran described excessive anxiety and worry, being on-edge at all times, sleepiness and difficulty sleeping, irritability, depressed and apathetic moods, lack of interest, and difficulty concentrating. Later in May 2015, the Veteran submitted correspondence in which he reported being angry much of the time and feeling detached and closed off. He also reported difficulty feeling or show joy or happiness and being irritable and angry with his wife, children, and people from work. He stated now being always on guard and distrustful of others. In January 2016, the Veteran submitted additional correspondence describing his symptomatology at the time as consisting of anxiety, irritability, depressed and apathetic mood, a lack of interest in activities he previously found enjoyable, weight gain, difficulty concentrating, muscle tension, and chronic sleep impairment. The Veteran further reported that his wife and kids constantly asked him if something was wrong and told him he appeared angry and irritable all the time. The Veteran indicated that he did not feel comfortable—ever. The Veteran also reported in this correspondence that while he did not have suicidal thoughts at the moment of his November 2014 private assessment, he has had these types of thoughts frequently since his symptoms began. In August 2016, the Veteran attended another VA mental health examination. At the examination, the Veteran reported that he generally did well at his jobs, but for his time at the Department of Health and Human Services. It was noted that the Veteran obtained a Bachelor’s degree in psychology in 2013 and a Master’s degree in business administration in 2015. It was also recorded that the Veteran requested his wife attend the appointment with him. When asked about difficulties he was currently facing regarding his mental health, the Veteran stated he was now more aggressive, less trusting, more defiant towards authority figures, more aggressive in his thoughts, and more controlling. He explained that he could not function when things did not go the way he wanted. He reported occasionally yelling and using profanity. His wife described the Veteran as irritable, controlling, and capable of having a short temper with people at home, work, or even with strangers. She relayed that he was always suspicious and looking for potential danger and that he cried and thrashed in his sleep. The examiner observed the Veteran to speak somewhat slowly and softly, but clearly and understandably. His psychomotor activity was somewhat stiff. He was noted to be generally cooperative, but guarded and serious. His thought processes were organized and goal directed. He did not report delusional or hallucinational thought content. He denied current suicidal ideation, but stated he had had some in the past. The Veteran described his dominant mood as “blah” and reported depression. He was noted to be mildly annoyed at the time of the session. The examiner qualified the Veteran’s symptoms as resulting in occupational and social impairment due to mild or transient symptoms which decrease work performance and ability to perform occupational tasks only during periods of significant stress. Based on the foregoing, the Board finds that the Veteran is entitled to a 30 percent disability rating, but no higher, for his psychiatric condition from May 14, 2015 to June 17, 2018. To this end, the Board notes that during this period, the record reflects the Veteran having suffered from excessive anxiety and worry, depressed and apathetic moods, being on-edge at all times, and occasional periods of an inability to function. The Veteran reported that he was more aggressive and less trusting. The Board finds that these symptoms amount to evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform tasks, especially in light of the Veteran’s reported occasional inability to function. However, evidence during this period does not reflect the Veteran suffering from a psychiatric condition such that he had occupational and social impairment with reduced reliability. For example, although the Veteran reported increase anxiety, worry, and depression, he also reported that he generally did well at his job. The Board understand this to mean that outside of the occasional periods of an inability to function note herein, the Veteran was otherwise functioning satisfactorily, which corresponds to a 30 percent disability rating under Diagnostic Codes for rating mental health disabilities. The Board acknowledges the Veteran’s January 2016 assertion that he suffered from suicidal ideation. The Board does not find this assertion to be supported by the record. Indeed, this self-report is the first note of suicidal thought on the record and the Board cannot conceive an explanation for why the Veteran would not have reported frequent suicidal thought at any of his previous mental health appointments or assessments. Moreover, the Veteran denied current suicidal ideation in August 2016, but stated he had some in the past. Considering the Veteran did not describe suicidal thought at his March 2014 evaluation or July 2014 mental health appointment, the Board understands this to mean any potential suicidal ideation experienced by the Veteran must have occurred prior to March 2014. 3. From June 18, 2018 to December 19, 2019, entitlement to a 50 percent disability rating, but no higher, for a psychiatric condition Again, the Veteran’s psychiatric symptoms appear to have worsened beginning in June 2018. The record also includes a June 18, 2018 letter from a treating psychologist. The psychologist explained that the Veteran struggled with relationships in his personal life and at work. The Veteran was described as having difficulty trusting the judgment of others. It was noted that his irritability, intolerance, and anger were putting a strain on his family. The Veteran would try to control when others could approach him and described socializing and interacting with others as draining. Treatment from June 2018 notes that the Veteran’s duties at work were dramatically reduced so much so that he would watch sports on his telephone to fill his time. The same psychologist conducted an assessment of the Veteran’s mental health in July 2018. The psychologist recorded the Veteran’s symptoms as depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, and recent events; flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability. The psychologist also noted the Veteran’s attention to detail can be distracting. These symptoms were qualified by the psychologist as resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. VA treatment records from January 2019 note that the Veteran answered “not at all” when asked if he ever thought he would be better off dead. Mental health notes from February 2019 note that the Veteran had been provisionally accepted into a graduate school. He relayed to his psychologist that he was focused on maintaining a balance between work, school, and family. He was noted to be able to prioritize his time and expressed interest in developing open and effective communication in personal and professional relationships. He was noted to be at a low risk for suicide or violence. In March 2019, his psychologist noted the Veteran had been formally accepted into graduate school. The Veteran reported that he was anxious about the work ahead, but wanted to do well. The psychologist noted the Veteran experienced a sense of well-being. From April 2019 to August 2019, the Veteran discussed his ability to balance school, work, and family, and spoke about looking forward to working as a counselor. His suicidality was only ever assessed as low. In August 2019, the Veteran’s psychologist submitted another assessment of the Veteran’s mental health. She noted, having seen the Veteran since February 2018, that the Veteran has been constantly on-edge and hypervigilant, suspicious of others, and mistrustful of most systems. His affect has been rigid and flat. His mood has been predominantly irritable. It was noted that his marriage is strained and that he occasional exhibits an intense anger response. However, it was also noted that the Veteran was able to organize a motorcycle social club, which was qualified as his “most solid alliance.” The Veteran was provided another VA mental health examination in December 2019, per the Board’s November 2019 remand. At the examination, the Veteran was observed to be well groomed, but tearful at times, with a constricted range of affect. He exhibited anxiety and depression. His speech was soft and not pressured and language intact. He was alert and oriented with no delusions or paranoia. His symptoms were noted to be depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation or mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work; suicidal ideation; and disorientation to time or place. The examiner also noted other symptoms, such as excessive irritability; never being satisfied with anything; rigidity; restlessness; mistrust; and struggling with promotion at work due to how he interacts with colleagues. He recently missed a meeting at work. It was also noted that his children avoid him, his family does not do things together anymore, he is overbearing with his daughter, and that he greeted a family member once “who the f*** are you and why are you here?” The examiner qualified the Veteran’s symptoms as resulting in occupational and social impairment with reduced reliability and productivity. Based on the foregoing, the Board finds that the Veteran is entitled a 50 percent disability rating, but no higher, for his psychiatric condition from June 18, 2018 to December 19, 2019. To this end, the Board notes that in December 2019 the Veteran was noted to suffer from symptoms consisting of depression, anxiety, suspiciousness, weekly or less panic attacks, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and disorientation. The December 2019 examiner qualified these symptoms as resulting in occupational and social impairment with reduced reliability and productivity. However, these symptoms are substantially similar to those noted in the Veteran’s July 2018 private assessment. It follows that if the symptoms noted in December 2019 were productive of occupational and social impairment with reduced reliability and productivity, the substantially similar symptoms noted in July 2018 were also capable of producing reduced reliability and productivity. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that this reduced reliability was first evinced on the record by symptoms noted in his treating psychologist’s letter and dramatic reduction in work duties, noted on the record two days apart in June 2018. Thus, the Board has chosen the date of the psychologist’s letter, June 18, 2018, as the effective date of the Veteran’s 50 percent disability rating for his psychiatric condition. The Board acknowledges that the Veteran’s December 2019 VA examination also notes psychiatric symptoms contemplated by a disability rating in excess of 50 percent. However, the Veteran’s psychiatric condition overall did not result in occupational and social impairment with deficiencies in most areas. For example, during this time, the Veteran was able to successfully apply for, be accepted into, and begin graduate school towards a second advanced degree. He was able to simultaneously maintain employment. He reported being able to balance school, family, and work life. He was also able to organize a social club, which the record suggests provides him a social network. Thus, while the Veteran’s symptoms reduced his occupational and social reliability and productivity during this period, they did not result occupational and social impairment with deficiencies in most areas. The Board also acknowledges the Veteran’s July 2018 private assessment and that the psychologist qualified the Veteran’s symptoms at the time as resulting in occupational and social impairment with deficiencies in most areas. Some of the symptoms noted in this assessment are simply not supported by the record. For example, the psychologist noted the Veteran exhibited circumstantial, circumlocutory, or stereotyped speech. Such speech difficulties had not been noted on the record by the time of the assessment and have not been noted since. Moreover, the psychologist noted it was difficult for the Veteran to understand complex commands and that he was unable to establish and maintain effective relationships. The record simply does not suggest that the Veteran has struggled with complex commands. Indeed, the record reflects that the Veteran is of above average intelligence. The Veteran has been able to maintain at least some relationships. For example, he has had the same job at an Air Force base since 2017. Thus, the Board was not persuaded by and did not consider this July 2018 qualification as to the Veteran’s occupational and social impairment during this period due to the inconsistencies between some of the symptoms used to qualify the impairment and those found on the record. 4. From December 20, 2019, entitlement to a disability rating in excess of 50 percent for a psychiatric condition Lastly, the Veteran’s psychiatric condition does not warrant a disability rating in excess of 50 percent from December 20, 2019. No evidence has been added to the record indicating that the Veteran’s psychiatric condition has worsened since his December 2019 examination. Notably, the Veteran did not argue for a disability rating in excess of 50 percent for this period in his September 2020 Appellate Brief. In sum, the Board finds that the Veteran’s psychiatric condition is appropriately rated as 10 percent disabling until May 14, 2015, warrants a 30 percent disability rating, but no higher, from May 14, 2015 to June 17, 2018, and warrants a 50 percent rating, but no higher, from June 18, 2018. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.