Citation Nr: 21026127 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-30 043 DATE: April 29, 2021 ORDER Entitlement to an increased rating in excess of 70 percent for somatic symptoms disorder with predominant pain disorder symptoms, insomnia disorder, and other specified trauma and stressor related disorder (psychiatric disorder) is denied. FINDING OF FACT The severity, frequency, and duration of the symptoms of the Veteran’s psychiatric disorder included occupational and social impairment with deficiencies in most areas, but did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased rating in excess of 70 percent for a psychiatric disorder 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 9440-9421. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1990 to October 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board remanded the matter in October 2018 to afford the Veteran a VA examination. In a July 2020 rating decision, the RO increased the Veteran’s rating to 70 percent and assigned a rating date of December 29, 2014. The Veteran has not expressed satisfaction with the increased disability rating; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). 1. Entitlement to an increased rating in excess of 70 percent. The Veteran’s psychiatric disorder has been rated 70 percent disabling effective December 2014, the date his claim for an increased rating was received. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating since December 2014. VA and private treatment records, the Veteran’s spouse’s lay statement, the May 2015 VA examination, and the September 2019 VA examination show that the Veteran’s psychiatric disorder was manifested by symptoms associated with a 70 percent rating including near-continuous panic, depressed mood, difficulty adapting to stressful circumstances, impaired impulse control, and obsessional rituals which interfere with routine activities, and suicidal ideations, but no symptoms associated with a 100 percent rating, resulting in occupational and social impairment with deficiencies in most areas. The Veteran sought VA care for chronic low back pain in 2013, but no mental health care is mentioned in his records during that period. In a November 2014 VA treatment note, the Veteran endorsed symptoms of depression, including impaired cognition, irritability, depressed mood, and low energy. The provider related this to chronic pain and a cumulative effect of years of poor sleep. The provider made referrals for neurology as well as sleep psychology. The Veteran filed a claim in December 2014 seeking an increase for his adjustment disorder, indicating that his condition had worsened. The Veteran sought care from a private treatment provider for his mental health. His records from February 2015 to March 2019 indicate that the Veteran’s symptoms included problems with his memory, blunted affect, anxiety, and restlessness. At his February 2015 initial psychiatric assessment, the Veteran reported anxiety, depression, and a short fuse, which negatively affected his relationships with his spouse and child. He noted that he had been social during college, but now isolated himself and did not attend functions with his spouse. The Veteran reported that his difficulty concentrating had affected his work, as he had difficulty staying on task. His private provider noted that the Veteran was self-medicating with alcohol, had blunted affect, and memory loss, all of which affected his social and work relationships. The Veteran was afforded a VA examination in May 2015. The examiner noted that the Veteran had more than one mental disorder diagnosed. The examiner found that the Veteran had other specified trauma and stressor related disorder symptoms, somatic symptom disorder with predominant pain disorder symptoms, insomnia disorder symptoms, and other comingled symptoms. At that time, the Veteran reported difficulties at work, included negative performance issues related to memory and temperament. The Veteran also noted limited social interactions and stated that he mostly interacted only with his spouse’s family, and that those interactions were difficult due to his blunt affect. He also reported increased alcohol consumption, which was tied to his sleeping and pain issues. The examiner noted that the Veteran was anxious, with no indications of homicidal or suicidal intentions. The examiner noted mild to moderate depression and partial posttraumatic stress symptomatology, with latent hostility expressed through anger and irritability and decreased frustration tolerance. The examiner indicated that the Veteran’s memory loss and inattention were shaped by his three psychiatric conditions. Following the examination, the Veteran’s adjustment disorder was revised to somatic symptoms disorder with predominant pain disorder symptoms, insomnia disorder, and other specified trauma and stressor related disorder, and assigned an evaluation of 30 percent effective December 2014. In September 2015, he denied hallucinations, as well as suicidal or homicidal intentions. His mood was noted to be anxious and depressed, and the Veteran again reported problems with his memory. Treatment notes indicated that he had forgotten his August follow-up appointment. The Veteran reported that his alcohol consumption had increased due to his psychiatric disorder, as the alcohol helped him to relax. There are no psychiatric records from 2016 to 2017. The Veteran returned to his private treatment provider in November 2018 and stated that he had not seen another provider during his break in care. In November 2018, the Veteran indicated he drank each night to go to sleep, and the Veteran’s provider noted that the Veteran’s depression and anxiety were severe, with symptoms including depressed mood, anxiety, flattened affect, memory loss, and difficulty in establishing work and social relationships. The Veteran also described struggles with coworkers, including confrontations with his supervisor and has prevented him from getting promoted. His provider prescribed medication to help with his symptoms throughout the record, adjusting his medications as needed. In a March 2019 lay statement, the Veteran’s spouse indicated that the Veteran had mood swings, including inappropriate and sudden outbursts. She also noted that he isolated himself, did not participate in social interactions, and was on alert at all times, to include keeping his gun with him. His spouse believed he was using alcohol to self-medicate and stated that they were in marital counseling and that she was considering divorcing him. Further, she indicated that his struggles with isolation had hindered his career progress and he had stopped applying for advancement opportunities at work. In a September 2019 disability benefits questionnaire, the examiner stated that the Veteran exhibited occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, and panic attacks more than once a week. The examiner noted that the Veteran was affected by near-continuous panic or depression, chronic sleep impairment, short term memory impairment, and flattened affect. The Veteran experienced impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner also noted that the Veteran had obsessional rituals that interfere with routine activities and impaired impulse control, such as unprovoked irritability with periods of violence. While the Veteran acknowledged suicidal ideation, he denied a current plan during the examination. The examiner opined that the Veteran’s emotional instability impacted the Veteran’s day-to-day reliability and ability to trust co-workers and supervisors, while his difficulty in establishing and maintaining effective work and social relationships made it difficult for him to interact with co-workers and the public in a reasonable and professional manner. Additionally, the examiner noted that the Veteran’s mental health was affected by his chronic pain, which was evident in the severity, frequency, and duration of his diagnostic history, including his mental health symptoms and diagnoses. The examiner did not indicate that the Veteran experienced total occupational and social impairment, as he exhibited no gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, nor did he exhibit a persistent danger of hurting himself or others. He was noted at the time of the examination to be oriented to time and place and did not exhibit memory loss of names of close relatives, his occupation, or his own name. The Board notes that the Veteran’s private treatment records and VA treatment records contain no indication of suicidal ideation until 2019. The Veteran expressed suicidal ideation twice in 2019, once to his private treatment provider at a March 2019 examination and again at his September 2019 examination. The Board recognizes that suicidal ideation is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, while the Veteran acknowledged suicidal ideation as noted above, he also denied thought, intent, or a plan involving self-hard in existing treatment records. For instance, in a March 2019 treatment note from his private provider, he denied suicidal or homicidal intentions. In a May 2019 VA treatment note, he also denied suicidal ideations. While there are two indications of suicidal ideation, these indications do not rise to the level of persistent suicidal ideation. The two indications of suicidal ideation in this case are explicitly contemplated in the 70 percent rating assigned. As such, the Board finds the record does not reflect that the Veteran is a persistent danger to himself or others, as contemplated in the 100 percent rating. Based on the evidence of record, the Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas, as noted in his private treatment records, the May 2015 VA examination, and the September 2019 VA examination. The Board finds that the assignment of the maximum 100 percent rating is not warranted in this case. Here, the evidence demonstrates that the Veteran’s psychiatric disability has not caused total occupational impairment, as he has had a long career of over 15 years at a Fortune 500 pharmaceutical company as a sales manager, despite the Veteran’s statements that he has not been promoted or gets into confrontations with coworkers. The 70 percent rating currently assigned rating contemplates the Veteran’s report of difficulty in adapting to stressful circumstances (including work or a worklike setting), as well as impaired impulse control. As discussed above, the Veteran has not manifested symptoms of the type, frequency, and severity contemplated in the 100 percent rating, to include his thoughts of suicide noted twice in his 2019 treatment records, and thus the Veteran’s psychiatric disorder has not resulted in total occupational and social impairment. Here, the evidence shows that the Veteran has remained married to his current wife during the relevant time period despite having intimacy and marital issues due to his psychiatric symptoms. He also described having good relationships with his daughter and stepchildren. Thus, despite the severity of the Veteran’s symptomatology and regardless of whether he exhibits any other the symptoms contemplated by the 100 percent rating criteria, the Veteran’s psychiatric disability has not resulted in total social and occupational impairment. In so finding, the Board acknowledges that the Veteran may experience an impairment in social functioning, but the Board finds that the 70 percent rating contemplates his inability to establish and maintain effective relationships. The Veteran is able to maintain interpersonal relationships and therefore total social impairment has not been shown. On this record, the Board finds that the Veteran is not shown to have experienced symptoms of the type, and extent, frequency or severity, as appropriate, to result in total occupational and social impairment, as contemplated by a 100 percent rating. In reaching this conclusion, the Board reiterates that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Vazquez-Claudio and Mauerhan, both supra. However, as discussed above, the Board finds that the evidence of record does not show that the Veteran has manifested symptoms that have resulted in a level of impairment that meets, or more nearly approximates, the level of impairment contemplated by the maximum, 100 percent rating under VA’s rating schedule. Accordingly, a rating greater than the already assigned 70 percent rating is not warranted in this case. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal is denied. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.